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enImagining a Federalist Israel: Notes Toward a Disruptive Fantasyhttps://www.lawfareblog.com/imagining-federalist-israel-notes-toward-disruptive-fantasy
<p><em>Editor’s note: Over the next week, </em>Lawfare<em> will be running a series of essays on federalist governance in the Middle East. This essay is the second in the series. Read the introductory essay <u><a href="https://www.lawfareblog.com/federalism-middle-east-collection-essays">here</a></u>.</em></p>
<p align="center"><strong>Introduction</strong></p>
<p>This is out there. It’s unrealistic. It’s a fantasy thought experiment. But it’s time to start talking about federalism in Israel—and ultimately in Palestine as well.</p>
<p>To be clear, I’m a two-state solution guy. I believed in the two-state solution before it was cool. I believed it in while it was cool. I kept the faith while others were busy losing it. And I continue to believe in it now that it’s decidedly no longer cool. I believe in it because I am sympathetic to the Zionist aspirations of Jews over more than a century, and I believe in it because I am sympathetic also to Palestinian national aspirations that have matured over the same time period. I believe in it because I believe that divorce is generally the best solution to a truly terrible marriage. The day we can get back to the negotiation of an equitable divorce arrangement for Palestinians and Israelis, count me in.</p>
<p>Indeed, I want to stress at the outset that I’m not writing this piece because I have given up on the two-state solution. I’m writing it because, to a great extent, the parties to the conflict have done so, or are in the process of doing so, and the conflict is thus drifting toward a one-state reality—either a one-state reality in which Israel actively incorporates the West Bank, as some of its politicians advocate, or a one-state reality in which the populations have become so intertwined as a consequence of the current stalemate that they become impossible to separate and the status quo thus becomes a permanent state of affairs. In either context, it strikes me as important to try to imagine the qualities and character of the state that will emerge. Will it be a state in which one ethnicity dominates another—the prospect that many people see in the recent passage by the Knesset of a new Basic Law on Israel as the nation state of the Jewish people? Will it be a unitary single state with bloc voting by ethnicity and religion? Or can Israelis and Palestinians be creative in designing structures that lower the stakes in what seem today like zero-sum disputes? And can we somehow enable this single state to express both communities’ national aspirations?</p>
<p>I want to stress something else at the outset too: I’m not delusional. There’s a known condition in the psychiatric literature called Jerusalem Syndrome, in which a person of previously sound mental health visits Jerusalem and experiences a religiously themed period of psychosis. These episodes are often accompanied by the perceived need to give a sermon at a religious landmark. There’s a related—related, at least, in my view—phenomenon in which outsiders to the Palestinian-Israeli conflict suddenly developing the delusion that they have some comprehensive plan to solve the unsolvable, to bring the parties both to their senses and to the table, and get done at long last “the deal.” Some who have suffered this diplomatic version of Jerusalem Syndrome have served at the most senior levels of American government. I suffer from Jerusalem Syndrome neither in its psychiatric nor its diplomatic form. I am not offering here any kind of peace plan, let alone a comprehensive one. I am fully aware that what I am proposing—as I said at the outset—is a kind of blue-sky fantasy that may well raise more questions than it answers. So consider what follows less of a proposal and more of a mood that might constructively guide us in a period of drift.</p>
<p>With those prefatory disclaimers, I think it’s time for a serious discussion of federalism, both in the context of the Israeli-Palestinian conflict and within the context of domestic Israeli politics themselves. I don’t mean federalism here in the sense that it’s sometimes used in the Israeli-Palestinian context, which is to say of some kind of confederation between Israel, the Palestinian territories, and—in some iterations—Jordan. I mean it in the far more ambitious sense of tearing up all internal borders within the combined territory of Israel and Palestine and carving the land up into a series of small and highly-autonomous provinces, cantons, or states—the specific terminology here carries symbolic importance to which I will return—unified by a national government empowered in the realms of foreign relations, national security, certain criminal enforcement, and human and equal rights protection. I am by no means the first to suggest this. A <u><a href="http://www.haaretz.com/opinion/.premium-1.582591">pair</a></u> of <u><a href="http://www.haaretz.com/israel-news/.premium-1.619741">articles</a></u> in Ha’aretz in 2014 suggested carving up Israel into cantons as a way of handling internal divisions. Wrote Judd Yadid and Carlo Strenger:</p>
<blockquote><p>Israeli cultural politics need not be a zero-sum game, imposing the values of one community over others. Solutions are to be found in countries like the United States, Switzerland, India and Spain. Just as U.S. states provide a framework for playing out America’s “culture wars” on a sub-national level, Israel’s cultural regions could create a more livable status quo. While the U.S. may dwarf Israel’s population and landmass, our cultural chasms are exponentially deeper. And just as the Swiss cantons afford their residents a high degree of autonomy in such areas as education, health and personal-status issues (including marriage), so should and can Israel’s.</p>
</blockquote>
<p>Last month, writing in the Washington Post, former Foreign Service officer Daniel Hollander penned a short essay, entitled “<u><a href="https://www.washingtonpost.com/opinions/forget-the-two-state-solution-lets-try-six/2018/07/18/80895696-7e32-11e8-b660-4d0f9f0351f1_story.html?utm_term=.b0584d4c90a5">Forget the Two-State Solution. Let’s Try Six</a></u>” in which he floated the idea of a “a federalist, multistate solution.”</p>
<p>In this essay, I want to flesh out the idea that a federal Israel may offer an approach to Israel’s drift toward binationalism. In Israel these days, there’s a fair bit of talk of approaching the conflict on the basis of “two states, one homeland.” I want in this essay to explore the idea of this sort of deep federalism both as a more concrete expression of the concept and as a means of alleviating certain tensions within contemporary Israeli society more broadly. The idea here is not to replace either Zionism or Palestinian nationalism with some binational secular vision, but to try to imagine a governance system that might give reasonable expression to the aspirations of both historical movements.</p>
<p align="center"><strong>The Current Dysfunction and the Alternative of Federalism</strong></p>
<p>Thinking seriously about, and trying to engineer, the character of the emergent state in the territory of Israel and Palestine is important because some kind of one-state reality is, in fact, emerging. Whether this reality ultimately emerges out of a deliberate Israeli policy of annexation or, more likely, out of failure to keep the populations separate enough to maintain a viable two state option—the slow encroaching drift of the anti-solutionist status quo—is less important than the fact that every passing year makes the two-state solution harder to achieve and thus makes some form of one-state governance more likely, whether one-state governance on the basis of domination or one-state governance on the basis of equality. Is this trend reversible? Sure. But it is the glide path on which the parties find themselves, and you wouldn’t put even money on their changing course. The reason is two-fold: dysfunction on the Palestinian side, and dysfunction on the Israeli side.</p>
<p>Any two-state solution requires execution, that is, tough decisions by leaders in both communities. It requires political risks. It requires leaders to join together, hold hands, and jump. On the Israeli side, the current government has no appetite for the two-state solution; many members of the government don’t even pay lip service to it. As the recent passage of the Israeli nation-state law shows, the current Israeli government is far more interested in defining the exclusively Jewish character of the current state than it is in yielding up sovereignty over any territory it controls. While the current government has at time shown caution about settlement building—despite its right-wing character—it has certainly continued settlement building and construction in Jerusalem that makes any eventual Palestinian state ever-less viable and ever-harder to envisage. There seems to be no prospect of this government’s replacement with one that would be committed to making a serious go at resolving the conflict on a two-state basis. The prospects of a government that would aim to freeze the conflict in place by preventing the outward growth of settlements and thus preserve the possibility of a two-state deal sometime in the future seems only somewhat more likely. The Israeli public has drifted perceptibly to the right, and the country’s commitment to the two-state outcome has dimmed accordingly.</p>
<p>The dysfunction on the Palestinian side is even worse. The Palestinian leadership is split between Gaza and the West Bank. On the West Bank side, it’s weak and corrupt and lacking in legitimacy. On the Gaza side, government is the province of a vicious and tyrannical terrorist group that actively targets civilians and treats war crimes as standard rules of engagement.</p>
<p>In other words, while large numbers of both Palestinians and Israelis still support a two-state solution in principle, the leadership of neither side is either able or willing to get there. This level of dysfunction on either side alone would be enough to preclude a two-state deal. The dysfunction on <em>both </em>sides—which is mutually reinforcing—all but guarantees that for the foreseeable future, progress will be incremental and set against a larger pattern of drift. That drift has been—and will, I suspect, continue to be—toward a reality in which separation is ever harder.</p>
<p>We tend to think about Israeli-Palestinian negotiations in the language of peace treaties. This flows from the two-state model; if you’re establishing the relationship between two separate sovereign states, you tend to think the language of international negotiations. But if you suspect, as I do, that neither party has either the will or the political capacity to effectuate that separation and we are thus really discussing the emerging qualities of a single state that will govern two peoples, a different vocabulary for the negotiations comes to mind: that of constitution writing.</p>
<p>One dirty little secret of the Palestinian-Israeli conflict is that the difference between the one-state solution and the two-state solution is at least a little bit less than meets the eye. Two states, after all, does not quite mean two <em>real</em> states. One state would be demilitarized; it would be entirely dependent on the other economically; and it would have certain other <em>de facto</em> or <em>de jure</em> limitations on its sovereignty. It would not be territorially contiguous. Palestine as imagined in the abortive attempts to birth it from the Oslo process—even in the Palestinian versions of the outcome—is an entity with all the symbolism of real statehood but something less than the reality of it.</p>
<p>Conversely, the one-state solution cannot plausibly mean one unitary—in the sense that Israel is now unitary—binational state with a roughly equal number of Israelis and Palestinians each voting for the same representative institutions that Israelis vote for. This is a recipe for the worst sort of ethnic politics and majoritarianism. There is simply no history of such countries functioning well or staying together without federalism. The zero-sum nature of certain ethnic goods—the symbols of the state, for example, land use issues, control of a national education curriculum, and control of the army most notably—make a unitary state in this context an extremely fraught proposition. For an example of just how fraught, one need only look at Lebanon, Israel’s neighbor to the north, which has struggled with the politics of confessional balance since its independence and has remained a weak and divided state throughout its entire history—one that saw a lengthy and bloody civil war.</p>
<p>It is the desire to bridge this gap that has produced the many proposals for some kind of confederation between Israel and Palestinian controlled areas. In these discussions, the nature of the confederation in question is almost always underdeveloped as a concept, and it’s also nearly always focused on enclaves and borders as they currently exist—with whatever adjustments negotiators might make to them. This form of confederation represents an intellectual attempt to grapple with the fact that the Palestinian areas will, in fact, be something less than a full state, particularly in relation to the very powerful Israeli state. It thus doesn’t alleviate problems like borders, Jerusalem, or regional, ethnic, and religious diversity. It merely renames them. The map is still left with an Israel, a West Bank, and a Gaza, and the problems with any Palestinian state one might create still remain. A confederation requires not merely a resolution of those issues that both sides can sign onto but an <em>additional</em> agreement about some degree of joint governance between the resulting entities.</p>
<p>My point here is that if we are on a glide-path to some kind of one-state reality, either <em>de facto</em> or <em>de jure</em>, we have to ask ourselves what the democratic and institutional qualities of that one state will be. Will it be a single state in which a majority of Palestinians will have no right to vote and live as a subjugated people, with some form of limited autonomy? Will it be a crude expression of majoritarianism? Will it be a kind of fake state dominated by a real state with an overlay of confederation? Or is there some more imaginative vision of a single state’s constitutional arrangement that might offer more hope of satisfying both Jewish and Palestinian national aspirations?</p>
<p>It is possible, I believe, to imagine a different model of federalism, a more radical and ambitious one than the various confederation models put forth—one that offers equal rights to Israelis and Palestinians, one that would alleviate some (though not all) of the most difficult issues that define the conflict, and one that might also alleviate some intra-Israeli and intra-Palestinian tensions. This model, I want to stress, does not answer all questions. It is not a peace plan. It is just a way of thinking about the construction of a one-state reality if Israelis and Palestinians prove unable to effectuate a meaningful separation.</p>
<p>The structure I am suggesting here is highly alien to the nature of the Israeli state, which is resolutely unitary. Many decisions that in the United States belong to state and local governments in Israel are decided at the national level. This is partly because Israel is small, and we tend to think of federalism as a structure for managing big states. But it’s also a matter of choice and design. Switzerland is just as small as Israel is but it works entirely differently. Federalism can also work as a tool for managing ethnic divisions within diverse countries; this is the role it plays successfully in countries like Canada and India. By elevating issues like education and land use to the national level, Israel makes the stakes in unitary national elections extraordinarily high. One key to creating a sustainable one-state reality might be to lower those stakes by giving Israelis and Palestinians—religious and secular alike—a great deal more local autonomy and reserving fewer matters for national resolution.</p>
<p align="center"><strong>An Overview of Federalism in Modern Israel</strong></p>
<p>Before sketching out what such an arrangement might actually look like, let’s take a look at just how unitary the Israeli state is and contrast it specifically with the United States, which divides sovereignty between a national government of limited powers and state governments with general police powers. Those state governments then grant a great deal of authority over matters like education and land use to localities.</p>
<p>By contrast, Israel has no states. And its local governments have no explicit constitutional existence at all. There is no mention of local government at all in Israel’s Basic Laws, which function as its working constitution. Despite <u><a href="http://fs.knesset.gov.il/17/law/17_lf1_362199.pdf">attempts</a></u> at comprehensive reform of the legal framework that governs local government, including discussion of proposals for a Basic Law that would address its constitutional role vis á vis the central government, local government remains regulated by a <u><a href="https://www.knesset.gov.il/lexicon/eng/LocalAuthorities_eng.htm">patchwork of ordinary legislation</a></u>, largely dating back to the British Mandate.</p>
<p>On the spectrum between wholly centralized government and decentralization á la American federalism, Israel is much closer to the former. But owing to the direct interaction between municipalities and those they govern around the various services they provide, along with Supreme Court case law that has empowered municipalities to regulate certain key aspects of public life, local government in practice plays a somewhat larger role in Israel than it may appear just looking at the law on the books.</p>
<p>The conventional expression of the relationship between central and local government in Israel, often articulated in case law and in the literature pertaining to local government, has been that local authorities are administrative branches of the central government that enjoy limited autonomy. For example, in 1992, the Ne’eman Public Commission report on local government spending described local government as follows:</p>
<blockquote><p>A local authority is the “creation” of the central government. It is the central government that determines its roles and authorities, and accompanies it in all its decisions and activities. In practice, local government is financially dependent on the central government and serves as its arm, with some degree of autonomy.</p>
</blockquote>
<p>As a consequence, local government law in Israel is a sub-category of administrative law, rather than a wholly separate discipline. Municipalities are subject in principle to the same constitutional and administrative obligations that apply to the central government. The court system is hierarchical in the sense that no region within Israel’s legally recognized jurisdiction has an independent court system. The police force is national.</p>
<p>The legislative framework governing local government in Israel grants the central government intrusive oversight powers over the administration of municipalities and local authorities. The Minister of the Interior, for example, exercises a large measure of control over local authorities’ officials, budget and policy. The minister’s authorities include, among others:</p>
<ul><li>The authority to create and dismantle municipalities and to redefine their borders;</li>
<li>The power to terminate local officials, <em>including elected officials</em>, to appoint local officials, and to require new elections;</li>
<li>All bylaws promulgated by local authorities must be reported to the Minister of the Interior, who may then intervene and even strike down local measures;</li>
<li>The Minister of the Interior approves the budgets of local authorities;</li>
<li>The Ministers of the Interior and the Treasury may audit local authorities and intervene in their financial dealings if they find that they are not managing their finances properly.</li>
</ul><p>While local authorities provide a variety of services to their residents, ranging from business licensing to planning and construction, health, education and even religious services, the framework for those services and their financing are largely dictated by the central government. For example, planning and construction policy is highly centralized—local planning and construction committees are subordinate to regional and national committees. Public health services are provided under the National Health Insurance Bill. The Ministry of Education determines the content of the core studies program that most Israeli schools are required to provide and even issues teachers their paychecks—though the curriculum varies in practice considerably between municipalities.</p>
<p>The central government also plays a major role in funding municipalities. Among other types of financing, the <a href="http://knesset.gov.il/committees/heb/material/data/pnim2016-02-22-00.pdf">vast majority</a> of Israel’s municipalities receive “balancing grants” from the central government to bridge gaps between their income and expenditures. At the same time, the central government has limited municipalities’ authority to impose taxes. In response to the inflation crisis that plagued Israel in the 1980s, the central government introduced legislation designed to substantially limit municipalities’ authority to collect municipal taxes and achieve greater uniformity among the different local authorities with regard to municipal taxes. Prior to this reform, municipalities regularly compensated for deficits in their budget by raising municipal taxes. The reform also limited the authority of municipalities to hand out tax breaks, responding to problems of corruption and lack of transparency in the way tax breaks had been handled (the history of the municipal tax reform and its aims are discussed <u><a href="https://www-nevo-co-il.ezp-prod1.hul.harvard.edu/psika_html/elyon/13024530-s18.htm">here</a></u>, at paragraphs 19-20, in Hebrew).</p>
<p>The situation is a little more complicated than this stark presentation might suggest. Indeed, both the descriptive and normative foundations of the conventional wisdom about the relationship between central and local government have been challenged.</p>
<p>As a descriptive matter, Israeli public law scholars have challenged the claim that local government is no more than a subordinate, limited arm of the central government. They have argued that despite what the law on the books seems to suggest, local authorities actually enjoy quite a lot of autonomy in practice and have a substantial impact on substantive public policy. For one thing, <u><a href="http://fips.huji.ac.il/sites/default/files/floersheimer/files/razin_local_government_reform_in_israel.pdf">some have argued</a></u> (see p. 57), the central government lacks the resources and manpower to actually exercise the kind of oversight that the statutory framework allows it to exercise over all of Israel’s municipalities.</p>
<p>Moreover, scholars have documented <em>de facto</em> delegation of key public policy issues to local authorities. At times, this delegation results from failure on the part of the various factions of the central government to agree on a national policy in certain areas. The result is that one area in which local authorities have had a key role is in the regulation of local conflicts between state and religion. For instance, municipalities have set their own rules regarding the operation of local businesses during the Sabbath, taking into consideration the religious inclinations of the local population. Over the past year, the Supreme Court, the Knesset and a number of municipalities have been tussling over this, with the court approving a Tel Aviv bylaw allowing certain business to open on the Sabbath, the Knesset passing legislation in response requiring approval from the Minister of the Interior for such local ordinances, and some municipalities seeking to pass similar bylaws before the new law goes went into force. The matter appears headed back to court now.</p>
<p>Another similar context in which local authorities have been consequential is the controversy over the sale of non-kosher meat, a highly contentious issue in Israel because of the religious and symbolic significance of non-kosher meat in Jewish tradition and history. In 1954, the Supreme Court held that a municipality lacked the authority to deny licenses to businesses that sell non-kosher meat, reasoning that balancing state and religion is a task for the central government. A similar decision struck down bylaws promulgated by local authorities that prohibited the sale of non-kosher meat. The Knesset responded by passing a broad authorization bill that empowered local authorities to ban the sale of non-kosher meat, essentially delegating the regulation of this issue to local authorities. In a landmark Supreme Court decision (See <u>HCJ 953/01,</u> <em>Solodkin v. Minister</em> of the Interior, 2004), the Court upheld this delegation but held that the exercise of the authority to ban the sale of non-kosher meat should take into account the composition of the local population. If most of the local population opposes the sale of non-kosher meat, the municipality may prohibit its sale. If there is little objection, it may not do so. In localities where the positions of the residents are mixed, the Court held, local authorities should be guided by the principle of proportionality and see to it that those who want to purchase non-kosher meat would have reasonable access to an establishment where they can do so.</p>
<p>Finally, the Supreme Court has recognized that in certain contexts, local authorities may actively oppose the central government’s policy. For example, in one of the landmark judicial decisions concerning the authorities of local government (<u><a href="http://elyon1.court.gov.il/files_eng/95/380/028/B01/95028380.b01.htm">HCJ 2838/95</a></u>, <em>Greenberg v. The Katzrin Local </em>Council, 1997), the Supreme Court held that a local authority is allowed to use its resources to launch a political campaign against a potential Israeli withdrawal from the Golan Heights. The Court reasoned that a local authority may launch a political campaign against national policy in cases in which it would be <em>directly affected</em> by that policy, as it would in the case of Katzerin. Justice Levin noted (see paragraph 7) that,</p>
<blockquote><p>[t]oday, the local authority functions as a quasi-political community, assuming a wide variety of functions, reaching beyond the functions traditionally associated with municipalities and local government. The control exercised by the central government in Israel is weaker than is commonly assumed.</p>
</blockquote>
<p>(Note that Justice Levin’s opinion provides a useful historical overview of the development of local government in Israel.)</p>
<p>Later on, in another case (<u><a href="http://elyon1.court.gov.il/files/04/040/101/T20/04101040.t20.pdf">HCJ 10104/04</a></u>, <em>Peace Now v. Yossef</em>, 2006 (Hebrew)), the Supreme Court largely reaffirmed <em>Greenberg</em> and held that local councils in the West Bank were allowed to divert resources to organizations that campaigned against the Gaza disengagement plan. The Court also held, however, that any funds diverted for that purpose should be deducted from the government aid provided to the local authorities involved in that campaign. </p>
<p>From a normative point of view, the advantages of preserving a measure of autonomy for local government have received attention in both case law and legal scholarship. Those supporting increased local government autonomy have emphasized the role of the democratically elected organs of local government (like mayors and city councils), its proximity to voters, its expertise in local matters and its ability to recognize and respond to developing needs in dynamic local environments. Some authors have even advocated for a reassessment of the balance of power between central and local government in Israel that would better reflect the advantages of local government. Among other writers, Tel Aviv University Faculty of Law Professors Yishai Blank and Issachar Rosen-Zvi have called for local government reform that would replace the existing statutory framework (which, they argue, views local authorities as inefficient and often corrupt conduits for the central government’s policies that need to be tamed) with a new approach that would afford more weight to the democratic virtues of municipalities.</p>
<p>In sum, while it is inaccurate to say that Israel’s government is entirely centralized and there are important policy areas where local government has taken the lead, the Israeli state remains a highly-centralized body, one with pockets of local autonomy that are, well, pockets.</p>
<p align="center"><strong>Imagining a More Federal Israel</strong></p>
<p>Let’s now enter the realm of fantasy and imagine a far more federal Israel. Let’s start by erasing the Green Line, which has moral significance only if one is trying to separate the Palestinian and Israeli populations and create borders between states. After all, the Green Line is nothing more than the cease-fire line from 1948, the place where armies happened to stop. Jewish and Palestinian families and communities both straddled it. The line reflects nobody’s considered judgment of how one would best design governance units. If one were thinking from scratch, nobody would draw a line that looks anything like it. Thinking federally allows us to do something much closer to thinking from scratch.</p>
<p>So let’s imagine instead a series of self-governing enclaves, each with the same constitutional powers as one another—broad authorities over education, local land use, issues of religion and state, taxation, and service delivery. Some of these enclaves are majority Jewish; some are majority Palestinian. Some are almost exclusively one or the other; some may be very mixed. Depending on how the internal lines are drawn, there might be a few of these enclaves or there might be many of them. They might vary in size or not. (It is also possible to imagine these enclaves as having differential powers, what some scholars term asymmetric federalism, but let’s imagine the federalism, at least for now, as symmetrical.)</p>
<p>The terminology here is important. To call these enclaves “states” might raise hackles in a part of the world where the terms “Jewish state” and “Palestinian state” connote fully independent sovereigns and expressions of national ambition. Palestinians have long feared “cantonization” of the West Bank, so we need to avoid the Swiss terminology. So let’s adopt the Canadian term “province” as a useful placeholder term.</p>
<p>Dividing Israel and the West Bank (let’s leave Gaza aside for now) into provinces with equal and symmetrical constitutional authorities would immediately alleviate certain of the most vexing issues in the Palestinian-Israeli conflict. For one thing, it would eliminate the problem of the external borders of the state, replacing it with the question of the <em>internal</em> borders of its provinces. While that latter question would be a dicey one across a great many axes, the question of what province you live in in the context of a state that guarantees equal rights is at least a somewhat less heavy question than that of what <em>country</em> you live in. Without underestimating at all the challenges of drawing these internal borders, therefore, it’s plausible to imagine that they would be at least somewhat less fraught than the challenges of drawing borders to separate Israel from Palestine.</p>
<p>A federal Israel could also solve a chunk of the problem of Jerusalem. Jerusalem could be the capital of the national entity. Municipal Jerusalem could also be a very mixed province within it. Jerusalem Palestinians have, as a group, refused to vote in municipal elections since the annexation of the city. A self-governing Jerusalem province that was the capital of a national entity might provide a framework for their inclusion in the state and their involvement in municipal politics that they have long boycotted and that has ill served them.</p>
<p>The approach could also substantially alleviate the problem of settlements. In a two-state model, after all, settlements either have to be dismantled or borders need to be adjusted in order to accommodate their permanence. In a federal model, by contrast, it’s possible to imagine what would amount to Jewish neighborhoods or villages in Palestinian-majority provinces—just as there would be Palestinian villages and cities in Jewish majority provinces. Continued development of these communities would be subject to provincial law and government, just like any other community in the province, and the residents would be protected by strong national central enforcement of equality rights.</p>
<p>One could also imagine a more federal system’s ameliorating some of the fierce sectarian politics within Israel proper, politics that have analogous tensions on the Palestinian side. Right now, control of certain Israeli ministries comes with immense power to allocate money and goods to favored communities. The result is a kind of spoils system in which, for example, religious parties distribute money to their school systems, the housing ministry invests in housing for specific types of groups, and Bedouin communities in the Negev have violent clashes with the government over local building restrictions in their communities. A principle of letting Tel Aviv be Tel Aviv, letting B’nei B’rak (a uniformly religious community nearby) be B’nei B’rak, and letting Umm Al Fahm (a Palestinian Israeli city in the North) be Umm Al Fahm might have a lot to recommend it in reducing the stakes in who controls the national functions of the state. It could also reduce the problem of the neglect of the periphery; the center of gravity of Israeli society is the wealthy coastal plane and the area between the coast and Jerusalem. The country’s North and South tend to get left behind. Giving those regions more autonomy and budgetary and governance authorities will make them less dependent on a central government for which they are often not the focus of attention.</p>
<p>Finally, a more federal Israel would reduce—though certainly not eliminate—the pernicious politics of demography in the state. Right now, Israelis and Palestinians alike worry about birth rates and immigration as an expression of political power. Jews worry about maintaining a Jewish majority in the areas controlled by Israel, as Palestinian birth rates eclipse Jewish reproduction. Secular Israelis worry about maintaining a secular majority, as ultra-Orthodox birth rates eclipse secular reproduction by an even greater margin. Palestinians worry about Jewish immigration under the Law of Return, and Israeli Jews are dead set against any reciprocal recognition of a Palestinian Right of Return. The demographic politics are so ugly, in part, because the stakes are so high. Only one vote—the vote for the Knesset—ultimately controls both a demographic spoils systems and the power to define the nature of the state. Contrast that with Canada, where cultural policies in Quebec are genuinely and radically different from policies elsewhere in Canada, or the United States, where Nevada chooses to have legal prostitution and Utah tightly regulates alcohol and criminal law varies widely among the states; the stakes in national elections, for cultural and religious purposes, are consequently far lower. Spread the power to govern around a bunch of different Israeli provinces, and allow those different communities to be dramatically more self-governing, and you potentially lower the stakes in Israeli demographic wars too. The reason is that you make it less threatening to be a minority. Being a minority at the national level is less of a burden when you’re simultaneously a governing majority in the community that actually governs your day-to-day life.</p>
<p align="center"><strong>The Problems Federalism Does Not Solve</strong></p>
<p>There are, of course, also major problems between Israelis and Palestinians that a federal model simply does not address—and some that it actively creates. As I noted above, while it eliminates the problem of external borders, it creates a problem of internal borders. Some provinces could be easy: creating a province out of the Golan Heights, for example, would give autonomous government to thousands of Druze and a few Jewish communities at the expense of nobody. On the other hand, the creation of many provinces would be tough and would require line-drawing that involves the definition of political communities and coalitions. The risk here is gerrymandering and the picking of winners and losers. A province that includes both Tel Aviv and B’nei B’rak, after all, is a very different animal than are two provinces that separate them. The drawing of internal borders would thus praise profound and challenging questions: Is the goal to engineer autonomous Jewish and Palestinian provinces, and autonomous religious and secular enclaves of both communities, and to thus entrench and give voice to existing identity categories? Or is the goal, conversely, to create communal blends that force coalition-building across sectarian, ethnic, and religious lines? Or is the goal to do one thing in some communities and another in others?</p>
<p>A federalist Israel would also have to struggle with the delegation of powers between the regional and national governments. The more ambitious the federalism, the more it would necessarily involve denuding a powerful central state of authorities that constitute the source of its power. That’s a wrenching process, particularly in a country that has a paternalistic governance tradition going back to deep socialist roots. Israel is not the United States or Switzerland, where federalism emerged from existing states banding together to create a national pact; it is a country where federalism would have to emerge from a powerful central government’s willingness to be less powerful. That’s a tough sell.</p>
<p>Another hard problem would be the protection of individual rights within the context of provinces that might be quite illiberal or have deep splits. A B’nei B’rak province would not be a pleasant place, for example, to be non-Sabbath observant. And a Hebron province dominated by Islamist fundamentalists would be a highly uncomfortable place to be a member of the Jewish settlement enclave that is currently protected by a heavy military presence in the city. This problem already exists to some degree, and it’s actually mitigated by the power of the central government. Reduce that power and empower instead those local communities, and we can expect it to worsen—and to require mechanisms of active alleviation. We can probably also expect some degree of self-sorting of a type we have already seen. Jerusalem today is far more religious than it used to be, for example.</p>
<p>Related to all of these issues are certain broad challenges a more federalist Israel would have to face, challenges that go directly to the nature of the Israeli state itself. One is the governance of security. At the macro level—and this is a deep challenge—a truly federalist Israel which granted equal rights and obligations to all of its citizens necessarily would mean a binational army, which is simply unthinkable for many Israeli Jews. Importantly, however, this is not a creature of a <em>federalist</em> Israel per se. It’s unavoidable in <em>any</em> one-state reality that isn’t going to be a deeply undemocratic expression of Jewish rule over a large non-voting, non-Jewish minority (or even majority). It would be theoretically possible, of course, to maintain the current system of exempting Palestinian citizens of Israel from compulsory military service, but it would be hard in the long term to square such a policy with the larger structural ambition of creating provinces of symmetrical powers composed of citizens of equal rights. Exempting 20 percent of the population from military service, after all, is a different animal from exempting half of it.</p>
<p>In addition, federalism creates a question of local policing that a binational unitary state does not face. Who is responsible for criminal enforcement within the provinces? And most particularly, who is responsible for protecting local minorities from oppression by their provincial leaderships or the majority members of their communities? For federalism in an Israeli context to have a hope of success in not devolving into a patchwork of crude and corrupt local majoritarianisms, it seems to me that the national government would need to retain strong enforcement powers at least over anti-corruption and individual rights protection.</p>
<p>This problem of the governance of security has a particularly acute manifestation in the specific problem of the competing necessities of preventing terrorism and allowing freedom of movement between the provinces. In any functioning democratic polity, after all, people can move freely between jurisdictions. Yet asking the residents of Israel proper to accept free movement of Palestinians from the West Bank—let alone Gaza—for labor, visitation, or residence is the toughest of tough sells. Terrorism has been a long-term reality of Israeli life and controlling Palestinian movement is one of the key tools available to the Israeli state in managing it. Moreover, Israelis would reasonably worry about flight into Israeli provinces by Palestinian economic migrants. Why would one live in an impoverished village in the West Bank, let alone in Gaza, if one has the right to life in Haifa? The flip side of this problem is no less fraught. No Palestinian would regard a state that did <em>not</em> allow freedom of movement as one that took equality seriously.</p>
<p>Finally, a more federalist Israel faces the broad problem of the challenge federalism inherently poses to the modern Zionist ideal—an ideal that receives expression in the symbols and name of the state itself. The power of the centralized Israeli state is partly a function of the fact that the Israeli state was a deliberate engine for forging identity. And the identity it aspires to forge—itself a highly contested question—is imagined by virtually nobody as an organic expression of the regional diversity of a collection of provinces, some Jewish, some Palestinian, some religious, some secular, and some mixed. A federalist Israel would thus face not only the very tangible question of representation in and domination of the residual national institutions of the state, but also the question of those symbols. Is the state in question even called Israel? Does it have a flag with a Star of David? Is its national anthem “Hatikvah”? That is, a federalist Israel would face the question of in what sense is it meaningfully a Jewish state at all—a question that is currently roiling the Israeli political system. These are questions, of course, inherent in any drift towards binationalism. But they arise acutely in the federalism context because the outcome would have to be engineered, not reached by passively following the path of least resistance. This point has its mirror image on the Palestinian side. Palestinian nationalism has never aspired to a political system of shared power in a federal mosaic with Zionist-dominated entities. In its secular forms, it has imagined an ethno-nationalist state; in its religious forms, it has imagined an Islamist state. A federalist Israel would require major ideological adjustments for both communities.</p>
<p align="center"><strong>Seven Principles of Federalism in Israel and Palestine</strong></p>
<p>It is important not to underestimate the magnitude of these challenges. It is also important, however, to realize that, in meeting them, Israel has certain strengths to bring to the table. For starters, it is a highly functional state with a particularly high-functioning legal system, including a first-rate judiciary. This judiciary has a developed tradition both of balancing the democratic will of the majority against the needs of minority communities and also of balancing the desires and norms of local communities against the rights of individuals. While the Israeli judiciary—and the High Court of Justice, in particular—is controversial within contemporary Israeli society and its role is actively the subject of political contest, it remains a relatively empowered set of institutions that already, to some degree, plays the roles it would have to play in a more federal governance structure.</p>
<p>Moreover, because Israel is a highly functioning state, it actually can arrange and implement governance reforms on its own, without negotiating with anyone. That is, we have the possibility of gradualism here. Unlike a peace deal, which has to be negotiated in a major set of agreements, Israel could establish some of the governance structures I’m describing here within the Green Line first, and then admit new provinces at a later date if and when the structure provides an attractive mode of governance that Palestinians would actually wish to join. One could imagine, in other words, a federalist Israel developing over time, starting with a series of domestic reforms and with provinces in the West Bank being absorbed over time. The particularly thorny problem of Gaza could be deferred for a much longer period of time. This approach has some potential to mitigate the now-dicey problem of Palestinian governance too; it’s much easier to design a functional small-area provincial government, after all, than it is to create and make functional an entire state.</p>
<p>From this very long windup, let me now distill what I think are seven basic principles of a federalism that might plausibly constitute a stable, democratic governance equilibrium for a one-state reality.</p>
<ul><li>First, each province has the same rights and authorities. We are not talking about limited regional autonomy, in which the Israeli state delegates—or subcontracts—some powers to a Palestinian autonomous region. The Nablus province has to have the same governance powers as the Tel Aviv province. (One could imagine a form of asymmetric federalism having application here—for example, giving certain provinces specific constitutional functions with respect to sites and populations within them. Think of the unusual authority, for example, that Canada allows Quebec to protect French language and culture. This approach might make the ultimate incorporation of Gaza into the country more conceivable. But by and large, provincial functions need to be sufficiently symmetrical so as not to give rise to anxieties about privileging one community at the expense of another.)</li>
<li>Second, every citizen must have equal rights under provincial law in every province.</li>
<li>Third, every citizen must have equal rights under national law.</li>
<li>Fourth, the national government must constitutionally guarantee a democratic form of government at the provincial level.</li>
<li>Fifth, the national government must be ultimately responsible for the enforcement of individual rights within the provinces, so that the provinces don’t—in secular areas—ban religious expression in a French-like fashion or—in religious areas—impose religious law in a fashion oppressive to secular minorities.</li>
<li>Sixth, beyond that, a federal Israel would have to tolerate radical local autonomy—provinces that may be quite Islamic, provinces that may be Ultra-Orthodox Jewish, provinces that may be radically secular, and provinces that may be deeply mixed.</li>
<li>Seventh, the national government should constitutionally be empowered in the realm of national security, anti-corruption, and individual rights protection. </li>
</ul><p>In closing, I want to say a word about how one might think about implementing federalism in Israel-Palestine. Specifically, it is important <em>not</em> to think about it as a peace plan or a matter of negotiation between Israeli and Palestinian interlocutors. For federalism to be attractive, it has to be attractive as a means through which Israelis—Jewish, Palestinian, religious, and secular—can govern themselves. It must be self-justifying on those terms. The hope is that the creation of federal structures might also, probably later, offer a basis for voluntary incorporation of West Bank provinces into a vibrantly democratic and federal Israeli state. But the initial task is the creation of provincial structures that allow meaningful self-government for the diversity of the citizen population within the existing Israeli state—that is, the creation of state governance that gives meaningful expression to the national aspirations of a diversity of populations with radically divergent ideas of the nature and purpose of a state that exists within a tiny territory.</p>
Tue, 14 Aug 2018 08:33:26 -0400Benjamin Wittes15683An Old OLC Opinion on Whether the President Can Be Subpoenaedhttps://www.lawfareblog.com/old-olc-opinion-whether-president-can-be-subpoenaed
<p>Over the weekend, I received a surprising email from my friend <a href="https://www.lawfareblog.com/contributors/sbates">Stephen Bates</a>, a professor of journalism and media studies at the University of Nevada Las Vegas who occasionally writes for <em>Lawfare</em>. Partly because of Bates’s work for Ken Starr, for whom he helped write the Starr Report, Bates has a long-running interest in matters pertaining to investigations of presidents. So back in June, he sought under the Freedom of Information Act <a href="https://www.documentcloud.org/documents/4753843-Dixon-Memo-on-Presidential-Subpoena.html">a Watergate-era Office of Legal Counsel opinion</a> on what has once again become a timely subject: “Presidential Amenability to Judicial Subpoenas.”</p>
<p>Remarkably, this document appears not previously to have become public. According to the correspondence between Bates and OLC, Bates became aware of it because it is cited in a different, more famous OLC memo from 2000, entitled "<a href="https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf">A Sitting President's Amenability to Indictment and Criminal Prosecution</a>." That memo reinforced an earlier Watergate-era memo by Robert G. Dixon Jr. entitled, “<a href="https://archive.org/details/1973OLCAmenabilityofthePresidenttoFederalCriminalProsecution">Amenability Of The President, Vice President And Other Civil Officers To Federal Criminal Prosecution While In Office</a>.” After receiving the subpoena memo, also written by Dixon, Bates sent it my way.</p>
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<p>I cannot promise that this memo has never become public before. Bates believes it is new, and I cannot find it on <a href="https://www.justice.gov/olc/opinions-main">OLC’s website</a>. Nor does it readily show up in an internet search, though I haven’t dug hard for it. Suffice it to say it has been, at a minimum, little noticed even at a time when we are actively debating, well, the amenability of the president to judicial subpoena.</p>
<p>Here is the memo, along with a few observations about it: </p>
<div class="DC-embed DC-embed-document DV-container" id="DV-viewer-4753843-Dixon-Memo-on-Presidential-Subpoena">First, the document antedates the Supreme Court’s landmark holding in <a href="https://www.law.cornell.edu/supremecourt/text/418/683"><em>U.S. v. Nixon</em></a>, so a fair bit of its analysis is out of date and interesting mostly for historical reasons. Specifically, to the extent that it discusses both executive privilege and the amenability of the president to a <em>subpoena duces tecum</em>, particularly a trial subpoena, <em>Nixon </em>addresses and answers both of these questions directly.</div>
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</script><p></p><noscript><br /><a href="https://assets.documentcloud.org/documents/4753843/Dixon-Memo-on-Presidential-Subpoena.pdf">Dixon Memo on Presidential Subpoena (PDF)</a><br /><br /><a href="https://assets.documentcloud.org/documents/4753843/Dixon-Memo-on-Presidential-Subpoena.txt">Dixon Memo on Presidential Subpoena (Text)</a><br /></noscript>
<p>Second, the memo does not focus, for obvious reasons, on what would be the critical question if Special Counsel Robert Mueller were to issue a grand jury subpoena to President Trump for his testimony, having failed to garner a voluntary interview from him: Whether a grand jury <em>subpoena</em> <em>ad testificandum </em>is sufficiently different from a subpoena at trial for tangible evidence (tapes) so as to be meaningfully distinguishable from the case in <em>Nixon</em>. Steve Vladeck and I <a href="https://www.lawfareblog.com/can-presidency-trump-special-counsel-subpoena">studied this question</a> in May and concluded that “Mueller would probably prevail if and when a battle over a grand-jury subpoena makes its way into court. But it is not a sure thing, and the president has plausible arguments available to him that a court would have to work through before enforcing a subpoena for his testimony.” Bates, <a href="https://www.washingtonpost.com/outlook/mueller-could-subpoena-trump-but-its-not-worth-the-chaos-that-would-follow/2018/07/12/04df0804-8550-11e8-9e80-403a221946a7_story.html?utm_term=.04203b562dc0">writing in the Washington Post</a>, agreed, though he argued prudentially against Mueller’s pushing the matter:</p>
<blockquote><p>In the Starr investigation in 1998, President Bill Clinton declined six invitations to testify before the grand jury. When the grand jury voted to subpoena him, the president’s lawyers said he would testify voluntarily, but the subpoena had to be withdrawn. To avoid a drawn-out court fight, Starr agreed. As a result, the courts have never evaluated the constitutionality of a subpoena seeking a president’s testimony before a grand jury. When Clinton claimed immunity in another judicial proceeding, he lost in the Supreme Court — unanimously. The same thing happened to the only other president to make such an argument, Richard Nixon.</p>
<p>So Mueller probably has the legal and constitutional authority, but he shouldn’t exercise it against this norm-busting president.</p>
</blockquote>
<p>Third, all that said, the memo does contain some interesting analysis and conclusions. It lays out the history of Chief Justice John Marshall’s subpoena of President Thomas Jefferson to testify in the Aaron Burr treason trial and Jefferson’s response to it—which amounted to an agreement to testify but a refusal to travel to do it and consequent insistence on testifying by deposition. Subsequent presidents, the memo recounts, have followed this pattern. Dixon concludes:</p>
<blockquote><p>The subpoenaing of a president involves a number of complex issues depending on the circumstances in which and the purposes for which the subpoena is issued. It is no answer to say with Chief Justice Marshall that the court’s power to subpoena the President is not disputed. As the Chief Justice himself pointed out, even assuming the existence of that power, the courts still would not proceed against the President in the same manner “as against an ordinary individual.” The real problem therefore lies not in the existence <em>vel non</em> of the basic subpoena power, as in fashioning rules which properly take into consideration the President’s special status and the particular circumstances of the case.</p>
</blockquote>
<p>This analysis has proven prescient in the post-Watergate era. During Watergate itself, the matter was tested not with respect to grand jury subpoenas for testimony. As Bates notes in the Post, “Jaworski, in fact, asked Nixon to testify before the grand jury. Nixon declined, and Jaworski decided not to issue a subpoena. He thought the president would refuse to comply. Some fights were worth fighting. This wasn’t one of them.”</p>
<p>By contrast, when Starr sought to compel Bill Clinton’s grand jury testimony, the question did not turn out to be a binary one of whether Clinton would testify at all, because Starr withdrew the subpoena when the two sides negotiated a set of terms under which Clinton—like Jefferson—testified from the White House. And Clinton did so with a number of accomodations that prosecutors would never make for an ordinary subject. If Mueller decides to pursue Trump’s testimony, it is reasonable to expect once again the crux of the issue to be less whether a subpoena is valid per se than the specific circumstances under which testimony will take place. </p>
Mon, 13 Aug 2018 07:56:50 -0400Benjamin Wittes15676Peter Smith’s Search for Hillary Clinton’s Emails: The Subplot Thickenshttps://www.lawfareblog.com/peter-smiths-search-hillary-clintons-emails-subplot-thickens
<p>There’s a new twist in one of the stranger subplots of <em>L’Affaire Russe. </em><a href="https://www.buzzfeednews.com/article/jasonleopold/peter-w-smith-hillary-clinton-emails-trump-flynn-money">Buzzfeed News reports</a> that Peter Smith, a Republican operative who reportedly sought to obtain missing Hillary Clinton emails during the 2016 presidential campaign, made several suspicious withdrawals from bank accounts during the timeframe of his quest for Clinton’s emails—suggesting that he may have paid people he believed were Russian hackers.</p>
<p>What’s more, the article, by reporters Anthony Cormier and Jason Leopold, suggests that the transactions are of active interest to the Mueller investigation. The special counsel indicted 12 Russian intelligence officers for hacking Democratic emails less than a month ago—and that <a href="https://www.lawfareblog.com/russia-indictment-20-what-make-muellers-hacking-indictment">action against the GRU officers</a> raised questions about whether anyone on this side of the Atlantic might be part of the conspiracy Special Counsel Robert Mueller has alleged against these Russians. To have the FBI and Mueller now unearthing Peter Smith’s financial transactions that may have involved people Smith believed to be Russian hackers raises a number of interesting questions about Mueller’s understanding of the scope of the conspiracy he has charged.</p>
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<p>Before diving into those questions, a quick refresher:</p>
<p>Peter Smith, a longtime Republican donor and political operative, had actively opposed the Clintons since the 1990s, reportedly <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/jones040198.htm">paying</a> thousands of dollars to promote stories about Bill Clinton’s alleged extramarital affairs. <a href="https://www.wsj.com/articles/gop-operative-sought-clinton-emails-from-hackers-implied-a-connection-to-flynn-1498770851?mod=article_inline">According to</a> the Wall Street Journal, Smith began an effort to obtain Hillary Clinton’s emails during the 2016 presidential campaign, including from people he believed to be hackers with possible connections to the Russian government. Smith appeared to be particularly interested in 33,000 personal emails that Hillary Clinton allegedly deleted from her private server while serving as secretary of state. Ten days after his interview with the Journal, <a href="https://www.wsj.com/articles/gop-activist-who-sought-clinton-emails-killed-self-1500002994">Smith died in what authorities deemed a suicide</a>.</p>
<p>As part of his efforts, Smith reached out to cybersecurity expert and <em>Lawfare </em>contributing editor Matt Tait, who later wrote up an <a href="https://www.lawfareblog.com/time-i-got-recruited-collude-russians">account</a> of his interactions with Smith throughout the summer of 2016. Smith first approached Tait “around the time the DNC emails were dumped by Wikileaks,” Tait wrote, on the premise of discussing the “Clinton emails.” Smith told Tait that he had been contacted on the dark web by an individual “who claimed to have a copy of emails from Secretary Clinton’s private server” and that he now wanted help authenticating the emails. Tait emphasized that during their interactions, Smith had expressed no concern over the possibility that the individual contacting him on the dark web was a front for the Russian government.</p>
<p>The Buzzfeed report fleshes out these stories by following the money. While the Journal had reported previously that, by his own account, Smith had <a href="https://www.wsj.com/articles/gop-activist-who-sought-clinton-emails-cited-trump-campaign-officials-1498872923">received</a> “batches of emails” from hackers in the fall of 2016, we now know that he may have paid significant sums for those emails—something that Smith previously denied.</p>
<p>Smith presented those he contacted for help with a “recruiting document” dated Sept. 7, 2016. On Sept. 8, Smith reportedly transferred $9,500 out of a bank account set up to manage his search for Clinton’s emails to a personal account. From the latter account, Buzzfeed reports, Smith later withdrew $4,900 in cash. In December 2017, Smith’s bank received an FBI subpoena for information on the $9,500 withdrawal—prompting the bank to provide the government with information on 88 suspicious transactions by Smith, totaling around $140,000, between January 2016 and April 2017.</p>
<p>On its own, the Buzzfeed story might not be a groundbreaking development. But the article doesn’t stand alone. It comes in the wake of Mueller’s indictments of Russians involved in the Kremlin’s social media manipulation operation and, more importantly for present purposes, the hacking and leaking of Democratic Party materials during the 2016 campaign. In that context, it is highly significant that Buzzfeed reports that Smith’s efforts are actively being investigated by the special counsel’s team. Not only has Mueller’s team interviewed “people who Smith tried to recruit and others who worked on his operation to obtain Clinton’s emails,” it has also “tried to determine if [former national security adviser Michael] Flynn assisted Smith in his operation”—a question that Smith’s possible payments to hackers are “key” to answering, Buzzfeed writes.</p>
<p>So how do the facts reported in the Peter Smith stories, particularly Buzzfeed’s latest, line up with Mueller’s indictments? Mueller’s allegations describe, in detail, a complex Russian conspiracy to shape the 2016 U.S. elections—a conspiracy that involved an influence operation conducted on social media, the publication of hacked information, and outreach to a person in contact with the Trump campaign, <a href="https://www.washingtonpost.com/politics/charges-against-russian-intelligence-officers-intensify-spotlight-on-trump-adviser-roger-stone/2018/07/13/ba0d0caa-86bb-11e8-8553-a3ce89036c78_story.html?utm_term=.56ade559559f">reportedly</a> Roger Stone.</p>
<p>The Peter Smith stories—between the Journal’s reporting, Tait’s <em>Lawfare </em>account and the latest report from Buzzfeed—describe another plot, one that took shape on this side of the Atlantic. Whether this second plot amounts to a conspiracy is a legal question beyond the scope of this post, but it appears to have involved, at a minimum, an agreement among a number of actors to obtain illegally hacked emails, perhaps by buying them. Tait wrote that he specifically warned Smith that the person purporting to have Clinton’s emails was likely part of Russia’s campaign against the United States and that Smith didn’t care about the source, as long as he got the emails. So it’s certainly plausible that the Smith operation also involved a conspiracy of some sort.</p>
<p>The question is whether, and to what extent, these two plots, or conspiracies, intersected: If “collusion” did indeed take place around the hacking and leaking of Clinton campaign emails, was Smith the American, or <em>an </em>American, with whom the Russians were colluding? Or was Smith’s effort an entirely separate operation, interacting with the Russian conspiracy only glancingly? Or, more distant yet, was Smith’s operation entirely separate from Russian operatives and not interacting with them at all, whatever Smith might have thought?</p>
<p>Before diving into the specific potential interactions between the GRU indictment and the Peter Smith story, it is important to stress the many remaining unknowns. It is unclear, for example, whether Smith’s operation was directed at real emails or just materials that Smith <em>believed </em>to be Hillary Clinton’s emails. It is also unclear whether the people he thought he was dealing with were actually Russian operatives or whether they were just fraudsters taking an old man for a ride. Finally, the extent to which Smith’s effort was actually connected to the Trump campaign proper remains unclear too. According to the Journal, several of the people Smith reached out to said that Smith claimed to be working with Michael Flynn, then a senior adviser to candidate Donald Trump. (Flynn has consistently declined to comment on any relationship with Smith.) The Journal <a href="https://www.wsj.com/articles/gop-operative-sought-clinton-emails-from-hackers-implied-a-connection-to-flynn-1498770851?mod=article_inline">referenced</a> emails between Smith and his associates that show they considered Flynn to be their ally. The Journal also reported that the Sept. 7 document Smith prepared to tout his efforts <a href="https://www.wsj.com/articles/gop-activist-who-sought-clinton-emails-cited-trump-campaign-officials-1498872923">listed several prominent Trump campaign officials</a> as involved—Flynn, Steve Bannon, Kellyanne Conway and Sam Clovis—under the heading “Trump Campaign.” The paper reported, however, that Bannon said he had never met Smith. Conway admitted to knowing Smith but said she had not talked to him in years. Buzzfeed’s report that Mueller is looking into any assistance Flynn provided to Smith suggests that, at the very least, the special counsel takes seriously the possibility that Smith undertook his quest with the blessing of people associated with the Trump campaign. And, of course, Flynn is now a cooperating witness in the Mueller investigation.</p>
<p>The unknowns aside, it is worth considering the Peter Smith story alongside the facts alleged in the GRU indictment last month. After all, if Mueller believes those facts amount to criminal activity, he presumably believes that he might charge anyone who joined that agreement. So how closely related are these stories?</p>
<p>On the whole, Peter Smith’s efforts run in parallel to the GRU hacking and leaking efforts, taking place along the same timeframe. Although both involve attempts to obtain emails, the emails in question are different: The hacking indictment refers primarily to emails stolen from the Democratic National Committee and the personal email account of the Clinton campaign chairman, John Podesta, which were eventually released by Guccifer 2.0 and Wikileaks. According to both Tait and the Journal, Smith was focused, by contrast, on the 33,000 emails deleted from Clinton’s personal email server, which she used during her time as secretary of state. That server was the subject of an FBI investigation during the campaign.</p>
<p>There is one moment in which these parallel lines come close to converging. On July 27, 2016, Trump infamously declared at a campaign rally, “Russia, if you’re listening, I hope you’re able to find the 30,000 [sic] emails that are missing”—that is, the same batch of emails that so captivated Smith. According to the July 13 indictment, later that same day, Russian hackers “attempted ... to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office.”</p>
<p>It is unclear at this stage what emails the GRU hackers were seeking—if any in particular—in targeting the server used by Clinton’s personal office. Until July 27, the GRU efforts had focused on the DNC and the Democratic Congressional Campaign Committee, as well as a successful spearphishing campaign against Podesta. But the attack on Clinton’s personal office appears to be the first attempt against a domain not associated with the Democratic Party or the Clinton campaign. If the hackers <em>were </em>looking for those 33,000 emails, a third-party, private domain used by the candidate’s personal office would be a logical place to start.</p>
<p>There is no evidence that Donald Trump knew anything about Smith’s plan or that the GRU hackers were acting with either Trump’s comments or Smith in mind—or that they were looking for the deleted emails at all. But the moment of convergence on July 27 has the makings of a striking coincidence.</p>
<p>It is also possible that Flynn may be another point of convergence. While he is not mentioned in the GRU indictment, the Journal reported last year that U.S. intelligence officials had information that Russian hackers discussed how to transmit Clinton’s emails to Flynn through an unidentified intermediary. The Buzzfeed story noted this as well. The Journal also reported that Smith repeatedly mentioned Flynn; his consulting firm, Flynn Intel Group; and his son, Michael F. Flynn, who was chief of staff at the consulting firm, in his efforts to recruit researchers for the project. Again, the fact that Flynn is now cooperating with the Mueller investigation should give the special counsel an opportunity to assess his role.</p>
<p>Notably, however, the two plots describe very different interactions with Wikileaks. Mueller alleges that the GRU hackers had extensive interaction with Wikileaks (called “Organization 1” in the July indictment) and that they used that website, along with DCLeaks, to publish their trove of stolen emails. The Atlantic has reported that Wikileaks reached out to at least two figures associated with the Trump campaign—<a href="https://www.theatlantic.com/politics/archive/2017/11/the-secret-correspondence-between-donald-trump-jr-and-wikileaks/545738/">Donald Trump Jr.</a> and <a href="https://www.theatlantic.com/politics/archive/2018/02/roger-stones-secret-messages-with-wikileaks/554432/">Roger Stone</a>—about stolen emails. By contrast, Wikileaks did not publish the emails that Smith obtained from the hackers. It is possible that Wikileaks never received those emails. As Smith told the Journal, he asked the hackers to pass the trove of emails along to Wikileaks; he did not do so himself. It is possible then that Wikileaks did not publish those emails because it never had them in the first place. It is also possible that Wikileaks did not publish them because it found them to be fraudulent. </p>
<p>Many analysts believe that Mueller’s next step, having alleged both the social media conspiracy and the GRU conspiracy, will be to bring these conspiracies home and charge American figures thought to have participated in the wrongdoing he has outlined. The Buzzfeed story raises the question of how central the Peter Smith story will be to this next act—assuming it comes to pass. It is possible this is all just a sideshow, a weird tangent that took place alongside the main storylines of <em>L’Affaire Russe</em>. But it is also possible that it was more than that.</p>
<p>After all, wouldn’t it be odd if a group of Russians had conspired to steal Hillary Clinton’s emails and dump them into the American presidential campaign, while a group of Americans had conspired to get Hillary Clinton emails from Russian hackers to help Donald Trump get elected, and the two groups had never met?</p>
<p>To borrow from Henry Wadsworth Longfellow: Conspiracies “that pass in the night, and speak each other in passing / Only a signal shown and a distant voice in the darkness.”</p>
Fri, 10 Aug 2018 19:40:31 -0400Victoria Clark, Matthew Kahn, Mikhaila R. Fogel, Quinta Jurecic, Benjamin Wittes15671Confidence in Government on National Security Matters: July 2018https://www.lawfareblog.com/confidence-government-national-security-matters-july-2018
<p>A year ago, we began <a href="https://www.lawfareblog.com/confidence-government-national-security-matters-new-polling-project">a polling project</a> to measure public confidence in government institutions on national security matters on an ongoing basis. This post provides our data for the month of July 2018. It includes perceptions about government institutions and about the two major political parties’ handling of national security; about the public’s comfort with intelligence authorities; about the president’s handling of key national security issues; about Special Counsel Robert Mueller’s investigation; and about ongoing military operations.</p>
<p align="center"><strong>Confidence in Institutions to Protect U.S. National Security Remains Stable</strong></p>
<p>In the last week of July, we used Google Surveys to ask respondents the following questions about confidence in institutions:</p>
<ul><li><a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=hkyfousig566ta2s2cv2lmthse">How much confidence do you have in </a><a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=hkyfousig566ta2s2cv2lmthse">the</a><a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=hkyfousig566ta2s2cv2lmthse"> Congress to protect U.S. national security?</a></li>
<li><a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=ut7ofte5zmchivj2jab67y2foe">How much confidence do you have in the federal courts to protect U.S. national security?</a></li>
<li><a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=qtti6polnq2iqmkayezijrmu7q">How much confidence do you have in the president to protect U.S. national security?</a></li>
<li><a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=uxt76q6nqsmrcebh6uu3czxasq">How much confidence do you have in the intelligence community to protect U.S. national security?</a></li>
<li><a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=hohng6mjt4vepeckqrvmodg7xm">How much confidence do you have in the military to protect U.S. national security?</a></li>
</ul><p>In July, public confidence in the president on national security matters dropped. This stands in stark contrast to every other institution, about which confidence increased since our previous month’s <a href="https://www.lawfareblog.com/confidence-government-national-security-matters-june-2018">polling</a> in late June. On a scale of 1 (“No confidence”) to 5 (“High confidence”), the average score for each institution from highest to lowest score was: 3.94 for the military, 3.22 for the intelligence community, 2.93 for federal courts, 2.75 for the president and 2.54 for Congress.</p>
<p>Confidence in President Trump on national security fell to 2.75 in July from 2.83 after his June summit with North Korean leader Kim Jong-un. This drop in public opinion may reflect criticism the president received from across the entire political spectrum for his performance at his summit in Helsinki with Russian President Vladimir Putin and the conflict with NATO allies that preceded his meeting with Putin. Confidence in the president dropped by a comparable amount among men and women, but among people under 35 years old, it dropped from 2.68 to 2.55 while there was no change with people over 55. This runs contrary to the idea that older Americans, who experienced the Cold War firsthand, would be more critical of the president’s obsequiousness toward Putin. Note that the presidential confidence average is still considerably above its low point in our polling—it has been generally on the rise over the past year. The July dip largely wiped away the previous month’s gain.</p>
<p>Diminished confidence in the president, however, is noteworthy because public confidence increased in every other institution in July. In June, confidence in the president and the federal courts stood even at 2.83. But in July, confidence in the courts increased to 2.93 while confidence in the president dropped to 2.75. Additionally, the share of respondents who gave the intelligence community the highest level of confidence—a 5 on our scale—increased from 15 percent in June to 22 percent in July. The Deep State had a good month.</p>
<p class="rtecenter"><span id="docs-internal-guid-e511f753-00fa-c599-e740-090866b5e6d1"><img height="403" src="https://lh6.googleusercontent.com/oV8hKNm8xFldKBUxrq3gg1hAYUxcxrdjhZEdgw4afqmFvEMYOGqctm16wiNsKZ8Pos7ZbZVFzMZoSn8bvu8S-DDeSudSU2r1njWWwvmDLLvueu3d5nogyStFzN5VdGY2p7M_f4_D" style="border-width:initial;border-style:none;" width="566" /></span></p>
<p align="center"><strong>Are Democrats Closing the Security Gap?</strong></p>
<p>We ask two separate questions to gauge the public’s party preferences on national security. And the results are not wholly consistent.</p>
<p>One is on confidence in the parties to handle national security matters generically. On that question, in July, average confidence in <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=nxqw2hhrxwxercs5hiy5cm5yx4">the Republican Party’s</a> ability to protect U.S. national security stood at 2.68, and average confidence in <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=6pync6q7wo4t46atsb62hyctwu">the Democratic Party</a>’s ability stood at 2.61. Both parties are perceived more favorably than is Congress as a whole, which has an average confidence score of 2.54.</p>
<p>This marks the second straight month that confidence in the Republican Party dropped and confidence in the Democratic Party increased. While the Republican Party continues to garner more confidence than the Democratic Party when it comes to national security, the gap between the two parties is narrower than it has been at any time since last October.</p>
<p>We pay particular attention to this statistic and a similar tracking question asked by Gallup every September. In Third Way <a href="https://www.thirdway.org/report/what-democrats-can-do-to-close-the-security-gap">research</a><a href="https://www.thirdway.org/report/what-democrats-can-do-to-close-the-security-gap">, </a>we have seen that when the gap is narrower Democrats tend to fare better in elections, as this security gap is often a leading indicator of overall party favorability.</p>
<p align="center"><span id="docs-internal-guid-e299b760-00fb-138a-e83c-581e93c90ec7"><img height="446" src="https://lh6.googleusercontent.com/1LeZ7Zc9YUR_o25aSgco1Nrfi-E-uKQxjnyL2mzUZ1lO-6pdMM1XGHZWwTTlEue2uWxHfIV3QNX2ZFtDcgR3ycV9OCvxCcZcNZBI2Pid7WMh8Cp-Omnqf2K9dn_LA9QPGz-eaBBu" style="border-width:initial;border-style:none;" width="605" /></span></p>
<p>If the results of the first question look promising for Democrats, the results of our <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=lkcecc5bv3dmcuplamhksrt6du">second question</a>—Which of the parties will do a better job protecting the country from international terrorism and military threats?—should encourage Republicans. On that question, the Republican advantage increases when respondents are asked to choose between the parties or options of “neither” or “don’t know.” When asked in this manner, 31 percent of respondents chose the Republican Party, while only 24 percent chose the Democratic Party; 24 percent chose “don’t know,” and 21 percent chose “neither.”</p>
<p>This seven-point gap between the parties in July is smaller than the 14-point gap from June, but the June figure was also a larger divide between the parties than at any time since we’ve asked this question. In other words, the security gap may be closing, but depending on how one frames the question, it still shows up as a substantial advantage for Republicans.</p>
<p align="center"><span id="docs-internal-guid-5e5b429e-00fb-4ff5-d633-12cf5ff65b7a"><img height="281" src="https://lh4.googleusercontent.com/gJyR6JxpmsnO8FmtOqYGCq6fK4WXvkpAwsZhl8G_S6O72tm0UJmP6k1a7IpT4QP6lS5gQSmwJN7H23xukFEzE-f9bxsiRldrWy84BsekOSVuYlAk-bcCYDfoN8207EGtdZwv0jNN" style="border-width:initial;border-style:none;" width="624" /></span></p>
<p align="center"><strong>The Public Remains Uncertain About Intelligence Authorities</strong></p>
<p>In late July we once again <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=uftc7x5ewpu5k4hwjyqp74b7xm">asked</a> respondents, “How comfortable are you with the powers of the U.S. intelligence community? Do intelligence agencies in your view have not enough authority or do they have too much authority?” There was a slight drop in the average response in July. As in all previous months that we’ve asked this question, respondents lean slightly toward the intelligence community having too much authority. However, also as in all previous months, by far and away the most common response to this question is a neutral 3 on our scale, with 45 percent of respondents selecting this option.</p>
<p class="rtecenter"><span id="docs-internal-guid-ddda2d5d-00fb-7ba6-2f43-bceeffbf7a0d"><img height="383" src="https://lh5.googleusercontent.com/73UnwrJaxrXQb6RFO1DjlIedbLu6aU9VPurxQHWH86MEkuw7vR71-s0Njknm1Zkt46XSHmDKCAaV88PMW_m2WoJhGMFtFH64HzXp9CAz1awF8DrAUkScDG6pXrfaT0KSDfvLHDBA" style="border-width:initial;border-style:none;" width="601" /></span></p>
<p align="center"><strong>Confidence Falls in the President’s Handling of Key National Security Issues</strong></p>
<p>In <a href="https://www.lawfareblog.com/confidence-government-national-security-matters-november-2017">November,</a> we began asking respondents how confident they were in the president’s ability to handle key national security issues, specifically with regard to <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=g2kzjezhfn2ca3bfndpnzvx4ny">Iran</a>, <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=thq5t2jpgm2pfwnnammxdihoka">North Korea</a> and <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=lv5m4vjp2pvk3cmps5nb2ssjca">terrorism</a>. In June, we once again found that confidence in the president on these topics remains low on our scale, at 2.53 for Iran, 2.55 for North Korea and 2.72 for terrorism. Confidence in the president’s handling of each of these issues is below the level of average confidence in the president’s handling of national security generally (2.75), and confidence in the president on each of these issues fell in July. This marks the third straight month that the public’s confidence in the president’s ability to handle Iran has fallen, following his announcement in May that the United States would leave the Iran nuclear deal.</p>
<p class="rtecenter"><span id="docs-internal-guid-5d88a3e7-00fb-aac8-6309-5126bfa47264"><img height="446" src="https://lh4.googleusercontent.com/ej8F6nl8H6SEsJ9vssOTg8LPeOxcL37qgS7e93jf0aYmMaj23_8rKBRsS5gca6aFEJTrXhspuhtsD4SSo1Nf0dG7kMU4BkSJ532JMkPri1fQb5wDrHN1C2SbifkZzv5rHp38fRx2" style="border-width:initial;border-style:none;" width="605" /></span></p>
<p align="center"><strong>Confidence in Special Counsel Mueller Increases</strong></p>
<p>As we have since October, we once again <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=ao4u3g4cxjer4nfszb4ccd34ou">asked</a> the public about its confidence in Robert Mueller’s “fairness and objectivity” at the end of July, and it was a 2.90 on our scale. This is an increase from June, which marked the first time since we began asking this question that the public did not hold higher confidence in Mueller than in the president.</p>
<p>Confidence in the Mueller investigation tends to spike when the special counsel indicts people or reaches plea agreements, and the Department of Justice had announced indictments against 12 Russian intelligence officers just before the period in which the poll was fielded. This may have helped to increase public confidence in Mueller. The first trial to result from the special counsel’s investigation, the prosecution of former Trump campaign chairman Paul Manafort, is underway, and the outcome may further impact confidence in the Mueller investigation. These results may show up in our August polling.</p>
<p class="rtecenter"><span id="docs-internal-guid-f4af500b-00fb-e20e-901e-2a84f5ebe35c"><img height="395" src="https://lh6.googleusercontent.com/93sd4ZNRXQzadFfOhQ-yfrZ6c_yDmzZj1SdKYMg9E-uXSmkiJUUnUzaIWtrxc_AjYdZrV1YAEHLYI3H5yIE3oYhT5kDGCyvDrSs1qHr11Rf0g-lGMTWbS_ucBllOWzx_7vuG_nW7" style="border-width:initial;border-style:none;" width="624" /></span></p>
<p align="center"><strong>Confidence in Ongoing Military Operations Falls and Remains Well Below Overall Confidence in the Military</strong></p>
<p>While the military enjoys the highest level of public confidence of any government institution we asked about (a 3.94 on our scale), confidence in ongoing military operations in <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=kx4yodywocar7qbh6n7ljn6j6m">Afghanistan</a> and <a href="https://surveys.google.com/reporting/survey?hl=en&amp;survey=vyx3tgrh45zuuzz2wvsl4osagy">Iraq-Syria</a> is markedly lower, with average confidence scores of 2.89 and 2.73, respectively. As the trend line indicates, public confidence in these military operations has wavered little since we began asking these questions in November, a result that is perhaps explained by scant media attention toward these operations in recent months.</p>
<p class="rtecenter"><span id="docs-internal-guid-f2a678fd-00fc-09d3-b906-3b602d1b12e9"><img height="446" src="https://lh6.googleusercontent.com/yA5yDEVdfvC_E3027HlT9C6ac4q-s86bGcGRH5Mdn4-0OCjyoMWO75IynIbY6qFhd47Ln_ZvatzhHvXt1M3tEesOwsFYDCJkxxxTgDeYCPfOuo8iyDFpXxPL5dtV6Ujv-tG-Lqe1" style="border-width:initial;border-style:none;" width="605" /></span></p>
<p align="center"><strong>Methodology</strong></p>
<p>From July 25-27, we once again used <a href="https://support.google.com/360suite/surveys/answer/6189786?hl=en&amp;ref_topic=7151885">Google Surveys</a>, which is supporting this project with a large in-kind donation of access to its survey platform, to ask a variety of questions related to national security. Respondents are internet users age 18 and older who answer “surveywall” questions on websites that use Google Opinion Rewards for Publishers to access content. Surveys appear on a network of more than 1,500 sites, including USA Today and the Financial Times. For more information on Google Surveys’ methodology, including questions regarding sampling bias and inferred demographics, please see <a href="https://services.google.com/fh/files/misc/google-surveys-whitepaper.pdf">Google’s white paper</a> on the topic. Benjamin Wittes and Emma Kohse also discussed criticisms and advantages of the Google Surveys methodology at some length <a href="https://www.brookings.edu/research/the-privacy-paradox-ii-measuring-the-privacy-benefits-of-privacy-threats/">in this paper</a></p>
Fri, 03 Aug 2018 14:13:09 -0400Mieke Eoyang, Ben Freeman, Ryan Pougiales, Benjamin Wittes15643Seven Theories of the Case, Updated: One Year Later, What More Do We Know About L’Affaire Russe?https://www.lawfareblog.com/seven-theories-case-updated-one-year-later-what-more-do-we-know-about-laffaire-russe
<p>More than a year ago, writing with Jane Chong in May 2017, we laid out what we called, “<a href="https://www.lawfareblog.com/seven-theories-case-what-do-we-really-know-about-laffaire-russe-and-what-could-it-all-mean">Seven Theories of the Case: What Do We Really Know about L’Affaire Russe and What Could it All Mean?</a>” The lengthy post was an attempt, as we described it at the time, to give:</p>
<blockquote><p>an overview of the facts known today, and . . . then put forth seven different theories of the Russia Connection case that might account for those facts. We present these in ascending order of potential menace, from the most innocent to the most alarming. In doing so, we attempt to narrow the field of discussion—or at least provide a disciplined framework for assessing the possibilities—and give readers guidance as to what to watch for as investigations on both the legislative and executive sides move forward.</p>
</blockquote>
<p>We wrote this post before the Comey firing, before the Trump Tower meeting became public, before Bob Mueller was appointed as special counsel, and before Mueller’s numerous prosecutions and dozens of news stories about his investigation and the underlying facts deepened the public record on the subject of<em> L’Affaire Russe</em>. Yet the piece, notwithstanding the blizzard of new information, has stood up rather well. The goal was to give something of a structured framework for thinking about the fact patterns at issue. And while the facts have certainly evolved, the framework remains useful.</p>
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<p>To refresh your memory—or if you never read the original post—the seven theories of the case were the following:</p>
<ul><li>Theory of the Case #1: It’s All a Giant Set of Coincidences and Disconnected Events</li>
<li>Theory of the Case #2: Trump Attracted Russophiles</li>
<li>Theory of the Case #3: The Russian Operation Wasn’t Really About Trump at All</li>
<li>Theory of the Case #4: Russian Intelligence Actively Penetrated the Trump Campaign—But Trump Didn’t Know</li>
<li>Theory of the Case #5: Russian Intelligence Actively Penetrated the Trump Campaign—And Trump Knew or Should Have Known</li>
<li>Theory of the Case #6: Kompromat</li>
<li>Theory of the Case #7: The President of the United States is a Russian Agent</li>
</ul><p>The other day, the folks at the <a href="https://fivethirtyeight.com/tag/politics-podcast/">FiveThirtyEight Politics Podcast</a> did an entire episode of the podcast in which they debated Trump-Russia collusion, using the “Seven Theories” post as their model. It’s an excellent discussion, structured as a debate in which Jody Avirgan, Clare Malone, Micah Cohen, and Nate Silver each stake out a position on the Seven Theories spectrum—they reduce the seven theories to four for simplicity’s sake—and argue for it. Avirgan took the most benign position, that “this is all just a bunch of coincidences, Russia didn’t directly help the Trump camp and there was nothing for them to collude on.” Malone argued that “Russian intelligence actively penetrated the Trump campaign, but Trump didn’t know.” Cohen took the view that “Trump knew” about ongoing Russian intelligence efforts. And Silver summed up his position with the succinct phrase: “Pee tape.”</p>
<p class="rtecenter"> </p>
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<iframe frameborder="0" height="180" scrolling="no" src="https://fivethirtyeight.com/player/politics/24235611/" style="margin:20px auto 25px;max-width:600px;" width="100%"></iframe><p></p></center>
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<p>We had been planning an update to the Seven Theories framework for a while, but the FiveThirtyEight discussion seems like an excellent catalyst. Which of these theories are still plausible readings of the facts? Which have subsequent disclosures and events rendered non-viable? Which seem more likely today than they did in May 2017?</p>
<p>Our purpose in this post is to narrow the Seven Theories framework and bring it up to date. Two of the theories, as we shall explain, seem plainly inconsistent with major fact patterns that have emerged in the 15 months since we wrote the original posts. Two others have gained substantial strength, in our view. And that said, the spectrum of possibility remains vast. Here’s our evaluation of each of the Seven Theories and the state of the spectrum they describe.</p>
<p>Let’s start by removing two theories from the table:</p>
<ul><li>Theory of the Case #1: It’s All a Giant Set of Coincidences and Disconnected Events and</li>
<li>Theory of the Case #3: The Russian Operation Wasn’t Really About Trump at All</li>
</ul><p>Theory #1 posited that</p>
<blockquote><p>the only grand unifying element of <em>L’Affaire Russe </em>is that birds of a feather—in this case Trumpist Russophiles—tend to flock together. Maybe there’s nothing much more to the Russia Connection matter than that. Trump was enthusiastic about Putin and Russia, so maybe it’s no surprise that a group of people who have no problem with that, who share the enthusiasm, and who have done business with Russian interests get on board. Some of those people may have crossed legal or ethical lines, but that has little to do with Trump—and importantly, each element has nothing to do with each other element.</p>
</blockquote>
<p>In this theory, which we viewed as unlikely even at the time we wrote the original piece, “the Trump-Russia relationship is ultimately no more than symbiotic: Russia and Trump had common interests and both pursued those interests, maintaining something of an unspoken non-aggression pact while they each pursued a common enemy.”</p>
<p>Theory #3, by contrast, posited that “the true explanation of the Trump-Russia connection is that the Russian operation wasn’t really about Trump at all—but was really about Hillary Clinton.” The Russians, like everyone else, believed that Clinton was going to win the 2016 election, the theory went. So the goal of the Russian operations with respect to the campaign “may well have been to injure her legitimacy and popularity as much as possible, weaken her domestic legitimacy, and retaliate against her perceived interference in Russian internal affairs when she, as Secretary of State, supported anti-Putin protesters. In this scenario, Russian support for Trump was largely ancillary to this effort to hurt Clinton.”</p>
<p>Neither of these theories survives the revelations of last summer or the facts alleged—and in some cases admitted—in the various Mueller prosecutions. For one thing, we have learned unambiguously that whatever was animating the figures associated with the Trump campaign, there was nothing coincidental about Russian approaches to Trump world. These were systematic and broad-based. Consider:</p>
<ul><li>In June 2016, Donald Trump, Jr., Jared Kushner and Paul Manafort <a href="https://www.nytimes.com/interactive/2017/07/18/us/politics/donald-trump-jr-russia-meeting.html">met</a> with a group of Russian visitors in Trump Tower, including attorney Natalia Veselnitskaya. In the now-infamous <a href="https://www.nytimes.com/interactive/2017/07/11/us/politics/donald-trump-jr-email-text.html?_r=0">email exchange</a> that preceded the meeting, Trump, Jr. wrote, “I love it, especially later in the summer” when informed that the meeting would provide him with documents that “would incriminate Hillary and her dealings with Russia and would be very useful to your father.” Trump, Jr. and other representatives of the Trump campaign were <a href="https://www.businessinsider.com/don-jr-disappointed-when-russian-lawyer-didnt-have-clinton-dirt-at-trump-tower-2018-6">reportedly disappointed</a> when Veselnitskaya failed to provide the promised “dirt” on Clinton and discussed the issue of Russian adoptions under the Magnitsky Act instead.</li>
<li>In March 2016, George Papadopoulos—who had just been named a foreign policy advisor for the Trump campaign—was approached by Joseph Mifsud, a professor with suspected links to Russian intelligence. According to the <a href="https://www.justice.gov/file/1007346/download">statement of offense</a> filed by the special counsel’s office, Mifsud introduced Papadopoulos to a woman he identified as a relative of Vladimir Putin, and Papadopoulos went on to use his connection with Mifsud to try to organize a meeting between the Trump campaign and Russian officials, which he proposed multiple times to the campaign as a meeting between Trump and Vladimir Putin himself. In April 2016—more than a month before the contents of the DNC hack were made public—Mifsud informed Papadopoulos that “the Russians” had “dirt” on Hillary Clinton in the form of “thousands of emails.”</li>
<li>Carter Page was announced as a foreign policy advisor to the campaign alongside Papadopoulos. He stepped down from that position in September 2016, after <a href="https://www.yahoo.com/news/u-s-intel-officials-probe-ties-between-trump-adviser-and-kremlin-175046002.html">news reports surfaced</a> that U.S. intelligence was looking into whether he had opened a line of communication between the Trump campaign and Russian officials during a July 2016 trip to Moscow. Thanks to the controversy around FBI surveillance of Page ginned up by Republicans on the House intelligence committee—and the resulting release of the Bureau’s FISA applications against Page—it’s now clear both that Russian agents <a href="https://www.nytimes.com/2017/04/04/us/politics/carter-page-trump-russia.html">attempted to recruit Page in 2013</a>, and that from October 2016 through June 2017, four separate judges on the FISA Court found there to be probable cause that Page was an agent of a foreign power (namely, Russia). The court made those determinations after Page departed the campaign, but it’s still striking that Trump identified as a foreign policy advisor a person who would soon become the subject of a counterintelligence investigation. And more importantly, a significant proportion of the activity that forms the basis for the warrant application involves Page’s activity during the campaign.</li>
<li>While the presidential campaign was ongoing in the summer of 2016, Trump’s attorney Michael Cohen and his business partner Felix Sater <a href="https://www.buzzfeednews.com/article/anthonycormier/trump-moscow-micheal-cohen-felix-sater-campaign#.nbRyXAmdk">pursued negotiations to build Trump Tower Moscow</a>, as Buzzfeed’s Anthony Cormier and Jason Leopold have reported. The negotiations involved contacts between Sater and a former GRU official—though Sater later told the Senate intelligence committee that “there is no such thing as a former Russian spy.” Sater’s work ended only on July 26, 2016, after Trump had been formally nominated as the Republican candidate for the presidency, when Trump tweeted that he had “<a href="https://twitter.com/realDonaldTrump/status/758071952498159616">ZERO investments in Russia</a>.”</li>
<li>In August and September 2016, <a href="https://stonecoldtruth.com/roger-stone-the-smoking-gun-aims-fires-misses/">Trump campaign aide Roger Stone</a> <a href="https://www.justice.gov/file/1080281/download">communicated by Twitter direct message with Guccifer 2.0</a>, who was then posing as a lone Romanian hacker but who, as the special counsel’s office has now alleged, was in fact a GRU persona. At one point, Guccifer 2.0 wrote to Stone, “please tell me if i can help u anyhow . . . it would be a great pleasure to me.”</li>
<li>Then there’s Maria Butina (sometimes spelled Mariia), <a href="https://www.lawfareblog.com/latest-russia-twist-criminal-charges-against-mariia-butina">the Russian national and firearms enthusiast</a> arrested in July 2018 for her efforts to move American conservative politics in a pro-Russian direction. It’s not clear to what extent Butin’s “meddling” was connected to the efforts at outreach to the Trump campaign and Trump organization. But the government does describe her activity as taking place during the 2016 campaign and she did make efforts to connect with Trump himself after his inauguration. That said, Butina’s story is yet more evidence that the Russian government invested significant time and energy in efforts to influence American conservative politics in 2016 and going forwards.</li>
</ul><p>In other words, while it remains possible that <em>L’Affaire Russe</em> involved principally recklessness and coincidence on the U.S. side of the relationship, it’s quite clear at this stage that it involved something decidedly not coincidental on the Russian side.</p>
<p>Moreover, it has also become unambiguously clear that the Russian efforts were not simply about hurting Clinton and destabilizing her prospective presidency. They were affirmatively about helping Trump too. The intelligence community has taken this view since its <a href="https://www.dni.gov/files/documents/ICA_2017_01.pdf">assessment in January 2017</a>, when it wrote that, “Putin and the Russian Government aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.”</p>
<p>But the public case for this position has become overwhelming over the last several months. For one thing, in the runup to the Trump Tower meeting, the intermediary arranging the meeting (music producer Rob Goldstone) wrote to Trump, Jr. that Veselnitskaya’s offer was “<a href="http://www.cnn.com/interactive/2017/07/politics/donald-trump-jr-full-emails/">part of Russia and its government's support for Mr. Trump</a>." Moreover, allegations in the <a href="https://www.justice.gov/file/1007346/download">statement of offense in the Papadopoulos case</a> and the indictments handed down over Russia’s <a href="https://www.justice.gov/file/1035477/download">social media influence operation</a> and the <a href="https://www.justice.gov/file/1080281/download">hacking and leaking of the DNC and Podesta emails</a> do not describe Russia’s intervention merely as an effort to damage Clinton but as an affirmative effort to help Trump. Russia systematically hacked the DNC, DCCC, and Clinton campaign and reached out to someone known to be connected with Trump and hinted about the existence of “dirt” on Clinton. Meanwhile, Mueller’s detailed chronicle of the social media posts seeded by Russian trolls shows that, “[f]rom at least April 2016 through November 2016,” the trolls began publishing posts “expressly advocating for the election of then-candidate Trump or expressly opposing Clinton.”</p>
<p>By contrast, Theory of the Case #2, which posits that the only notable action on the Trump campaign’s side was that the campaign affirmatively attracted Russophiles, remains viable. In this theory, “Trump’s Putinista tendencies—along with his many other eccentric and unappealing features—had made him so unacceptable to traditional foreign policy conservatives that the only people willing and eager to work for him were people of fringe views similar to his own, shady business ties, or both.” In this version of reality,</p>
<blockquote><p>There was a Russian hacking operation, and there was a largely unconnected incentive for people with untoward Russian business connections to attach themselves to Trump. The latter incentive may have resulted in individuals doing unsavory or even illegal things or acting on behalf of Russian interests, but it did not involve any Russian infiltration of the Trump campaign as such, much less Russian corruption of Trump himself.</p>
</blockquote>
<p>With the caveat that there was pretty clearly Russian <em>attempts</em> to infiltrate the Trump campaign, and a certain receptivity on the part of Trump campaign and Trump Organization figures to approaches from Moscow, this theory still can explain a lot. Remember that there is still no evidence that any Russian infiltration efforts saw success—at least not if success is defined by what we have colloquially come to call “collusion.” While there is evidence—most notably with respect to the Trump Tower meeting—of Trump campaign willingness to work with the Russians, there’s not a lot of evidence that any kind of deal was ever struck. So it’s still possible that <em>L’Affaire Russe</em> boils down to a systematic Russian effort to reach out to and help and engage with the Trump campaign combined with, on the U.S. side, a group of people who came together because of—among other things—a solicitude for Russia and, as a result, adopted a cheerful open door policy towards Russian agents who might come knocking. This was true at the top: Trump himself was praising Putin and calling on him to find Clinton’s emails. And it was true at a bunch of other levels too. But that doesn’t mean there was any kind of organized collusive arrangement.</p>
<p>But Theory #2 also asks us to overlook a number of things. Most importantly, it asks us to se aside the enthusiasm with which aspects of Trump world actively engaged with figures that seem preponderantly likely to have been cutouts for Russian intelligence—at a time the Russians were known to have hacked the DNC and the Clinton campaign.</p>
<p>This brings us to “Theory of the Case #4: Russian Intelligence Actively Penetrated the Trump Campaign—But Trump Didn’t Know.” There is, it is important to stress, a continuum between Theory #2 and this theory, and that continuum extends into “Theory of the Case #5: Russian Intelligence Actively Penetrated the Trump Campaign—And Trump Knew or Should Have Known.” If we accept that Russia clearly <em>tried</em> to penetrate the campaign, and if we accept that—at a minimum—there was receptivity on the part of Trump world figures to outreach from the Russians, the question of whether the U.S. side of the ledger was one of recruitment or exploitation or merely one of acting as passive beneficiary is really a question of degree. So, too, is the question of Trump’s personal knowledge of what was happening. It’s possible, of course, that Trump—even as he was publicly calling for the Russians to release Clinton’s emails—was completely ignorant of the engagements his campaign and family were having with Russian cutouts at precisely the same time. It’s also possible he had detailed knowledge of the Trump Tower meeting. But between those two poles are a lot of gradations. There are many ways to know without knowing, after all. And this is especially true in the case of Donald Trump, of whose state of mind one can never be quite sure.</p>
<p>The public case that Russians targeted the Trump campaign for penetration and influence, as we noted above, is now quite strong. The case that they did so successfully is less so. That said, even the attempt is not by any means trivial. What exactly they achieved with their outreach to Trump world remains entirely unclear.</p>
<p>One possibility is that they were attempting recruitment. The <a href="https://www.lawfareblog.com/document-justice-department-releases-carter-page-fisa-application">Carter Page FISA application</a> shows that the Justice Department and FBI believed at a minimum that Page had been “the subject of targeted recruitment by the Russian government.” Papadopoulos appears to have had some kind of advance information about Russian access to Democratic emails. Manafort and Flynn both had significant financial relationships with Russian or pro-Russian Ukrainian interests. But the evidence that the Russians successfully recruited agents, at least beyond the government’s allegations about Page, remains quite thin.</p>
<p>Another possibility is that the Russians were attempting to get access and influence. And with the Trump Tower meeting, they did manage to get an audience with the top echelons of the campaign. What’s more, everyone seemed to be meeting with then-Ambassador Sergey Kislyak. And from this point of view, the Russians may well perceive the outreach as a success. The candidate, after all, did make numerous positive statements about Russian relations and Vladimir Putin himself—though how much of this has anything to do with these meetings is unclear. At a minimum, it is no small thing for the Russian state to have gotten a Republican nominee for president willing to reverse decades of Republican Russia-skepticism and commitment to NATO.</p>
<p>To the extent Russian engagement with the campaign aimed merely to assist a friendly figure achieve his own electoral ambitions, the engagement itself may have been collateral to what Russia decided on its own to do on Trump’s behalf.</p>
<p>The evidence that Trump knew about any of the goings on in his camp with respect to Russia also remains opaque. Trump has denied knowing anything about the Trump Tower meeting, but <a href="https://www.cnn.com/2018/07/26/politics/michael-cohen-donald-trump-june-2016-meeting-knowledge/index.html">Michael Cohen has reportedly claimed</a> that the candidate was aware of the meeting and approved it ahead of time. While Cohen is not exactly a reliable source, it is true that Donald Trump, Jr.’s phone records show that <a href="https://www.washingtonpost.com/news/politics/wp/2018/05/18/did-trump-jr-call-the-blocked-number-or-vice-versa/?utm_term=.49b488df4c13">the candidate’s son was in contact with a blocked phone number</a> in the midst of arranging the meeting—and Trump’s former campaign manager Corey Lewandowski has testified that Trump’s private residence at Trump Tower has a blocked line. What’s more, two days before the meeting, Trump promised a crowd that he would soon be giving a “major speech” on “<a href="https://www.cnn.com/2018/07/31/politics/trump-tower-meeting-timeline/index.html">all of the things that have taken place with the Clintons</a>”—but after the meeting turned out to be a dud, the speech did not take place. And notably, the hacking indictment shows that the GRU made its first effort to break into Hillary Clinton’s personal email server and the email accounts of Clinton campaign staff on the same day—July 27, 2016—that Trump declared at a campaign stop, “<a href="https://www.nytimes.com/2018/07/13/us/politics/trump-russia-clinton-emails.html">Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing</a>” from Clinton’s email account. This is far from dispositive, but it’s also quite a series of coincidences.</p>
<p>At a minimum, the evidence that Trump at least should have known about some of the engagement has significantly strengthened.</p>
<p>On the other hand, the hard evidence to support “Theory of the Case #6: Kompromat” has not materially changed in the last 15 months, though no evidence has emerged that undermines the theory either. No direct evidence has emerged that there exists a Russian kompromat file—let alone a pee tape—involving Trump, despite a huge amount of speculation on the subject. What has changed is that Trump’s behavior at the Helsinki summit suddenly moved the possibility of kompromat into the realm of respectable discourse. Democratic political leaders, who had previously shied away from the notion that the Kremlin might have something on the president, <a href="https://slate.com/news-and-politics/2018/07/pelosi-schumer-suggest-putin-has-dirt-on-president-trump-after-helsinki-press-conference.html">openly suggested it after Helsinki</a>. Nancy Pelosi, for example, said that the Helsinki performance “proves that the Russians have something on the President, personally, financially or politically.” Added Chuck Schumer, “Millions of Americans will continue to wonder if the only possible explanation for this dangerous behavior is the possibility that President Putin holds damaging information over President Trump.”</p>
<p>Trump’s conduct in Helsinki is not evidence except in the loosest behavioral sense—the sense in which someone acting particularly nervous in an airport <a href="http://apps.bostonglobe.com/news/nation/graphics/2018/07/tsa-quiet-skies/?p1=HP_SpecialTSA">might attract the attention of security personnel</a>. Then again, it’s a little hard to imagine what other forms of new evidence of kompromat might emerge even if the file were real. It’s not like the Russians are likely to blow their leverage by releasing it, after all. And Trump is hardly going to come forward and announce that the Russians have been blackmailing him—or that he’s been pulling punches with respect to Putin preemptively out of fear of what they might have or release. So if you imagine that Theory #6 were, in fact, the reality, you wouldn’t necessarily expect to see more than the President of the United States, say, behaving in a servile fashion toward the Russian dictator and not pushing core American interests in his presence even when the entire world is watching aghast.</p>
<p>This is also consistent with what we described in our original post as the “soft kompromat” scenario: that is, it’s possible that Trump himself doesn’t know whether the Kremlin has anything on him, but is treading carefully on the chance that it does. (New Yorker writer Adam Davidson recently <a href="https://www.newyorker.com/news-desk/swamp-chronicles/a-theory-of-trump-kompromat">laid out a version of this theory in great detail</a>.) So the absence of any evidence of kompromat could, in this theory, also speak to the shadowy power of that theoretical kompromat in the first place.</p>
<p>Last but not least, there’s “Theory of the Case #7: The President of the United States is a Russian Agent.” As we wrote last year, “we consider this scenario highly unlikely. It simply strains credulity to imagine that a president would be in service of an adversary nation.” And while nothing has emerged that rules this theory out, no new evidence has appeared that makes it more likely, either.</p>
<p>One additional constellation of facts has emerged since we wrote “Seven Theories” that inflects this entire discussion: Trump’s bizarre behavior toward the investigation of<em> L’Affaire Russe. </em>This includes everything from the firing of Comey to the public belittling of Rod Rosenstein and Jeff Sessions and Chris Wray and Andrew McCabe to the threats to Mueller and the serial Twitter tantrums on the subject of the “WITCH HUNT.” Indeed, as we were writing this, the president <a href="https://twitter.com/realDonaldTrump/status/1024646945640525826">launched into a tirade</a> demanding that “Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now.”</p>
<p>It is possible to look at this behavior, in general, as evidence that suggests that the underlying facts of <em>L’Affaire Russe</em> must be very bad—that is, that we must be at the more menacing end of the spectrum (perhaps Theory #6 or #7), not the more innocent end. Who, after all, triggers a major probe into obstruction of justice in order to impede an investigation that’s going nowhere anyway? On the other hand, it’s also possible to look at the obstruction investigation as simply a matter that Trump blundered into and to see his interactions with law enforcement more as a feature of his personality than his actual vulnerability from L’Affaire Russe. Perhaps Trump fired Comey in a fit of rage and insecurity over the legitimacy of his election, and then was unable to restrain himself from attempting to meddle with each subsequent development as Mueller developed his investigation into the initial firing of Comey—resulting in a cascade of obstruction attempts not necessarily connected to any underlying crime.</p>
<p>The bottom line is that the spectrum of possibility has narrowed but remains broad. It’s still very possible that the investigation will end with something short of “NO COLLUSION”—which is to say, something like “no collusion despite collusion efforts” or “no successful collusion by anyone all that close to the center of Trump world, but a bit of collusion around the edges.” But it’s also possible that when all is said and done, there are major shoes left to drop.</p>
Thu, 02 Aug 2018 11:52:48 -0400Quinta Jurecic, Benjamin Wittes15632The Justice Department Finds &#039;No Responsive Records&#039; to Support a Trump Speechhttps://www.lawfareblog.com/justice-department-finds-no-responsive-records-support-trump-speech
<p class="rtejustify"><em>“According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.” </em></p>
<p align="right">Donald Trump, speech before a joint session of Congress, Feb. 28, 2017</p>
<p class="rtejustify"> </p>
<p class="rtejustify"><em>“On June 12, 2018, you reached an agreement with [the Justice Department] to resolve certain issues in dispute in this litigation, whereby [Justice] would conduct a search for records containing data of (i) all individuals convicted of all terrorism-related offenses (domestic and international) between 2001 and the date of the initial search, or (ii) all individuals convicted of all domestic terrorism-related offenses between 2001 and the date of the initial search. . . . [N]o responsive records were located.”</em></p>
<p class="rteright">Justice Department letter to Benjamin Wittes, July 24, 2018</p>
<p> </p>
<p>It isn’t every day that the Department of Justice acknowledges formally that the president of the United States lied in a speech to Congress. But that’s how I read a <a href="https://assets.documentcloud.org/documents/4623380/7-24-18-Final-Response.pdf">letter I received a few days ago</a> from the department’s Office of Information Policy in connection with one of my Freedom of Information Act suits against the department.</p>
<p>No, the Justice Department letter does not come out and say what it clearly means: that President Trump, early in his tenure, was untruthful both about the role of foreigners in terrorism and terrorism-related crimes and about Justice Department data on the subject.</p>
<p>But that is what the letter says if you read between the lines.</p>
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<p>To understand the significance of this letter, let’s go back to Trump’s first <a href="https://www.npr.org/2017/02/28/516717981/watch-live-trump-addresses-joint-session-of-congress">address</a> to Congress, in February 2017. The new president made the striking claim quoted above: “According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.”</p>
<p>I did not believe those words were true when Trump spoke them, for a variety of reasons. For one thing, the Justice Department does not keep data at a systematic level on where criminal defendants were born. For another thing, there are a lot of domestic terrorism cases, and they are generally not committed by people born abroad. To the extent that those cases are excluded—white supremacist violence, anti-abortion terrorism and militia violence—the inquiry is grossly biased. To the extent that such cases are included, one would have to analyze a raft of data that I didn’t know the department kept in a comprehensive fashion.</p>
<p>Responding to the speech, in <a href="https://www.lawfareblog.com/what-data-really-show-about-terrorists-who-came-here-part-i-introduction-and-overview">a series</a> <a href="https://www.lawfareblog.com/what-data-really-show-about-terrorists-who-came-here-part-ii-country-country-analysis">of</a> <a href="https://www.lawfareblog.com/what-data-really-show-about-terrorists-who-came-here-part-iii-what-if-you-included-domestic">articles</a> published on <em>Lawfare</em>, Nora Ellingsen and Lisa Daniels carefully evaluated the president’s claims. Examining a public list of international terrorism cases released by the Justice Department’s National Security Division (NSD), Ellingsen and Daniels concluded that it simply wasn’t accurate to say that a “vast majority” of individuals on that list “came here from outside our country”—“unless, that is, you include individuals who were forcibly brought to the United States in order to be prosecuted and exclude all domestic terrorism cases."</p>
<p>Ellingsen and Daniels’s analysis led me to conclude that Trump was lying about the supposedly high number of terrorism convictions involving foreign-born defendants. And just as important, he was probably also lying about whether career Justice Department officials at NSD—who are not the kind of people to distort facts for partisan ends—provided him with any data to support his claim.</p>
<p>So in April of last year, <a href="https://www.lawfareblog.com/did-justice-department-really-support-presidents-misstatement-congress-lets-find-out">I filed two FOIA requests</a>. I asked for any records supporting the president’s claim before Congress, along with any records “relating to the nationality or country of origin of individuals convicted of terrorism-related offenses”; correspondence between the Justice Department and the White House related to that data; and correspondence related to preparation for and reaction to the February 2017 joint address. When the department did not respond, I filed a <a href="https://www.lawfareblog.com/friendliest-lawsuit-ever-filed-against-justice-department">lawsuit</a>.</p>
<p>In February of this year, I <a href="https://www.lawfareblog.com/anatomy-presidential-untruth-what-data-did-justice-department-really-provide-white-house">received</a> 57 pages of material from the National Security Division in response to the request—specifically, the portion of the lawsuit concerning communications within and originating from NSD. From the documents, Ellingsen and I were able to reconstruct a partial picture of the origins of the president’s spurious claim. To boil it down, NSD had provided data on international terrorism prosecutions only, not domestic ones. Both NSD and the FBI emphasized the limitations of this data. The Justice Department explicitly warned the White House that the data did not “include convictions related solely to domestic terrorism.” And the FBI noted that “database checks are limited in their ability to accurately identify a date/place of birth.”</p>
<p>In other words, having been advised that the dataset contained critical omissions, that data about naturalized citizens probably contained “gaps or errors,” and that the data dealt only with international terrorism cases—not domestic ones—the president and his administration nonetheless crafted the misleading statement that appeared in his first address to Congress. What’s more, in January of this year, the president <em>again</em> <a href="https://www.lawfareblog.com/trump-repeats-his-lies-about-terrorism-immigration-and-justice-department-data">mischaracterized the data</a> in a tweet promoting a report by the Justice Department and the Department of Homeland Security:</p>
<p></p><center>
<blockquote class="twitter-tweet" data-lang="en"><p dir="ltr" lang="en" xml:lang="en">....we need to keep America safe, including moving away from a random chain migration and lottery system, to one that is merit-based. <a href="https://t.co/7PtoSFK1n2">https://t.co/7PtoSFK1n2</a></p>
<p>— Donald J. Trump (@realDonaldTrump) <a href="https://twitter.com/realDonaldTrump/status/953406553083777029?ref_src=twsrc%5Etfw">January 16, 2018</a></p></blockquote>
<script async="" src="https://platform.twitter.com/widgets.js" charset="utf-8"></script><p></p></center>
<p>But the material we received in February included only NSD records. It did not include material from the rest of the department. What if, say, someone in the attorney general’s office had other data? NSD, after all, doesn’t handle domestic terrorism matters. Perhaps someone elsewhere had assembled the domestic terrorism data and data about all terrorism cases and it was that dataset that supported the president’s words.</p>
<p>That brings me to the letter I received a few days ago.</p>
<p>A number of weeks ago, the Justice Department and my lawyers—Larry Schwartztol and Justin Florence of Protect Democracy—agreed to simplify the remaining searches to facilitate resolution of the case. The offices of the attorney general, the deputy attorney general, legislative affairs and public affairs would each conduct a search “for records containing data of (i) all individuals convicted of all terrorism-related offenses (domestic and international) between 2001 and the date of the initial search, or (ii) all individuals convicted of all domestic terrorism-related offenses between 2001 and the date of the initial search.” Presumably, if the Justice Department had provided the White House with data to support the president’s claims, the request would have gone through the department’s top brass. If there was some data “provided by the Department of Justice” to the White House showing that “the vast majority of individuals convicted [in all] terrorism and terrorism-related offenses since 9/11”—including domestic terrorism cases—“came here from outside of our country,” there would be some record of it either in the attorney general’s office or the deputy attorney general’s office.</p>
<p>I was confident the search would produce no responsive documents. And it, in fact, produced none.</p>
<p>Because what the president of the United States said before a joint session of Congress was not true. It wasn’t true about immigrants and terrorism. And neither was it true about the Justice Department.</p>
Tue, 31 Jul 2018 13:55:06 -0400Benjamin Wittes15617The Latest Russia Twist: Criminal Charges Against Mariia Butinahttps://www.lawfareblog.com/latest-russia-twist-criminal-charges-against-mariia-butina
<p>President Trump had barely finished with what Sen. John McCain <a href="https://twitter.com/SenJohnMcCain/status/1018919182904299520">called</a> “one of the most disgraceful performances by an American president in memory”—his <a href="http://time.com/5339848/donald-trump-vladimir-putin-summit-transcript/">joint press conference with Vladimir Putin in Helsinki</a>—when the Justice Department fired its latest broadside against his inexplicable skepticism about Russian interference in American politics.</p>
<p>Trump, standing next to the Russian dictator, had credulously lapped up Putin’s denial that Russian state actors had hacked the Democrats (“President Putin was extremely strong and powerful in his denial today”); he had blamed the United States, along with the Kremlin, for the chill in U.S.-Russia relations (“I think that the United States has been foolish”); and he had floated widely debunked conspiracy theories as an alternative explanation for the Democratic National Committee hack (“Where are those servers? They’re missing; where are they? What happened to Hillary Clinton’s emails?”). He did all this despite Special Counsel Robert Mueller’s <a href="https://www.lawfareblog.com/document-special-counsel-indicts-12-russian-intelligence-officers-hacking-dnc-and-clinton-campaign">indictment</a> Friday of 12 Russian military officers for the 2016 hackings.</p>
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<p>Yet as if to bracket the president’s meeting with the Russian dictator with maximal humiliation, the Justice Department—part of the supposedly unitary executive branch under Donald J. Trump—<a href="https://www.justice.gov/opa/pr/russian-national-charged-conspiracy-act-agent-russian-federation-within-united-states">announced</a> Monday that a “criminal complaint was unsealed today in the District of Columbia charging a Russian national with conspiracy to act as an agent of the Russian Federation within the United States without prior notification to the Attorney General.”</p>
<p>The department’s new action deals with the activities of one Mariia Butina, a Russian woman who allegedly worked to create “back channel[s]” of communication between U.S. politicians and the Russian government. The affidavit in support of the criminal complaint against Butina—filed by FBI Special Agent Kevin Helson—contends that Butina worked alongside a “Russian Official” (<a href="https://www.nytimes.com/2017/11/17/us/politics/trump-russia-kushner.html">identified in the media as Aleksandr Torshin</a>) and with the help of “U.S. Person 1,” focusing on developing relationships within a “Gun Rights Organization” (clearly the NRA). According to the affidavit, Butina also worked to engineer meetings between Russian officials and Americans, including an influential “U.S. Person 2.” These two people remain publicly unidentified.</p>
<p>Trump is not the only one that the criminal complaint should humiliate. Only a few months ago Rep. Adam Schiff—the ranking Democrat on the House intelligence committee—complained publicly that the committee majority was releasing its <a href="https://www.lawfareblog.com/document-house-intelligence-committee-majority-and-minority-reports-russian-election-interference">report</a> without even interviewing the individuals involved in this bizarre episode. The majority report “<a href="https://democrats-intelligence.house.gov/uploadedfiles/minorityviews.pdf">ignores significant outstanding questions about individuals who sought to set up this backchannel</a>,” wrote Schiff and the Democratic members of the committee, “including why Torshin and Butina were interested in connecting the Trump campaign to Putin, what they sought to get out of that connection, why they enlisted the support of NRA colleagues, and whether others in the campaign were communicating with Russia through the NRA.” The Justice Department action Monday—even as the president was busy, in McCain’s words, “<a href="https://www.mccain.senate.gov/public/index.cfm?p=press-releases&amp;id=A99FDA26-673D-4560-B4EA-5AEDF0685EC5">abas[ing] himself … before a tyrant</a>”—rather vindicates Schiff’s curiosity.</p>
<p>Before turning to the details of the allegations, a few antecedent points:</p>
<p>First, this was not an action by Mueller but by the Justice Department’s National Security Division (NSD) and the U.S. attorney’s office in Washington. Precisely why that is so is not entirely clear from the documents. The activity described in the <a href="http://assets.documentcloud.org/documents/4600265/Butina-Affidavit-in-Support-of-Criminal-Complaitn.pdf">criminal complaint</a> and the accompanying <a href="http://assets.documentcloud.org/documents/4600264/Butina-Criminal-Complaint.pdf">affidavit</a> certainly covers the period of the 2016 election campaign. It certainly includes allegations of Russian “meddling” or “interference” in the U.S. political system. Mueller would almost certainly have been within his rights had he considered this matter within his jurisdiction under a <a href="https://www.justice.gov/opa/press-release/file/967231/download">grant of authority</a> that includes “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation.” Whether Mueller passed the matter off to the NSD, or whether it originated there, the fact that this investigation is being handled outside of the special counsel’s office shows the discipline Mueller is exercising in <em>not</em> taking on matters that aren’t strictly related to Russian interference in the 2016 election. He passed the Michael Cohen investigation off to the U.S. Attorney’s Office for the Southern District of New York. And this one—though more obviously linked to the matter of Russian electoral interference—ended up, by one means or another, not in his shop but in the NSD and with the U.S. attorney for the District of Columbia.</p>
<p>These decisions reflect discipline and modesty on Mueller’s part; he is not building an investigative empire the way Kenneth Starr did, to Starr’s own great cost. And they have a very happy collateral effect: They significantly reduce the potential consequences of a Mueller firing. If Trump were to fire Rod Rosenstein or Mueller or both in a fit of pique tomorrow, the Michael Cohen investigation would continue. This prosecution would continue. The Russian hacking indictment has been passed to the NSD.</p>
<p>There is no investigative Fort Knox here that the president can easily disrupt. He cannot fire his way to impunity any longer—if he ever could.</p>
<p>Second, it is significant that the Justice Department did not proceed in this case by indictment but, instead, by criminal complaint and by arresting Butina, who appeared in court Monday afternoon and will remain in custody pending a hearing Wednesday. Generally speaking, the department proceeds in this fashion when it has some reason to fear flight or for some other reason lacks confidence that a putative defendant will surrender upon indictment.</p>
<p>The fact that Butina is in custody, moreover, makes this case very different from either the <a href="https://www.lawfareblog.com/document-special-counsel-indicts-russian-nationals-and-entities">Internet Research Agency indictment</a> in February or the <a href="https://www.lawfareblog.com/document-special-counsel-indicts-12-russian-intelligence-officers-hacking-dnc-and-clinton-campaign">hacking indictment</a> last week. In those instances, the defendants are outside the jurisdiction of the United States. Their cooperation cannot be won or coerced under any situation a prosecutor can count on or engineer—though Putin did mockingly suggest during the press conference Monday that the Russian government could interview the GRU officials under its mutual legal assistance treaty with the United States, a suggestion Trump characterized as an “<a href="http://time.com/5339848/donald-trump-vladimir-putin-summit-transcript/">incredible offer</a>.” In this case, however, with Butina inside the U.S. criminal justice system, it is possible to imagine, say, asking her with whom she may have “colluded” in the U.S. And it’s possible to imagine her having significant incentives to answer to such questions truthfully.</p>
<p>Third, while it is impossible to know at this stage how big a deal this case is, at a minimum it is another example of the breadth of Russian efforts to influence the U.S. political system. Consider: In February, the Justice Department alleged a covert social media influence scheme designed to “<a href="https://www.justice.gov/file/1035477/download">interfere with [U.S.] elections and political processes</a>.” Last week, it alleged that Russian state actors had “<a href="https://www.justice.gov/file/1080281/download">conducted large-scale cyber operations to interfere with the 2016 U.S. presidential election</a>.” Monday, it alleged a conspiracy to “<a href="https://assets.documentcloud.org/documents/4600264/Butina-Criminal-Complaint.pdf">infiltrate organizations active in U.S. politics in an effort to advance the interests of the Russian Federation</a>.” Read the two indictments and criminal complaint in conjunction with one another, and the scope and scale of what the president—in the presence of Putin himself—refuses to accept snaps into view.</p>
<p>So what has the government alleged? That Mariia Butina engaged in a conspiracy with a Russian government official in order to soften U.S. policy toward Russia on behalf of Moscow without properly notifying the Department of Justice. She did this, the government alleges, by using relationships with officials in influential conservative political groups, including the National Rifle Association, to establish private lines of communication on behalf of representatives of the Russian government.</p>
<p>The Russian official in question is allegedly a “high-level official in the Russian government” who was “previously a member of the legislature” and a “top official at the Russian Central Bank”—a description that <a href="https://www.washingtonpost.com/local/public-safety/maria-butina-russian-gun-rights-advocate-charged-in-us-with-acting-as-russian-federation-agent/2018/07/16/d1d4832a-8929-11e8-85ae-511bc1146b0b_story.html?noredirect=on&amp;utm_term=.b3ba94bcc159">matches the biography of Alexander Torshin</a>, who was a senator in the upper house of the Russian parliament for more than 10 years and later <a href="https://www.nytimes.com/2017/12/03/us/politics/trump-putin-russia-nra-campaign.html">served</a> as a deputy governor of the Russian Central Bank. Multiple news stories over the past few months have reported on his and Butina’s support of the NRA. Indeed, both Butina and Torshin are <a href="https://www.npr.org/2018/03/01/590076949/depth-of-russian-politicians-cultivation-of-nra-ties-revealed">lifetime members</a> of the NRA: In 2016, Torshin <a href="https://www.nbcnews.com/news/us-news/russian-mariia-butina-charged-foreign-agent-who-eyed-nra-pols-n891821">tweeted</a> that he and Butina were the only Russians who could claim that distinction. According to the affidavit in support of the criminal complaint, Torshin “directed” Butina in her activities in the United States.</p>
<p>The affidavit describes the activities of Butina and Torshin in terms of the Russian leadership’s broader strategic objectives: to “expand [Russia’s] sphere of influence and strength,” particularly by “[p]enetrating the U.S. national decision-making apparatus and Intelligence Community.” The government lists two categories of means through which the Russians aim to achieve these ends. First, Butina and Torshin aimed to establish back channels, or private lines of communication, between representatives of the Russian government and Republican Party leadership. The document suggests that such “lines could be used by the Russian Federation to penetrate the U.S. national decision-making apparatus to advance the agenda of the Russian Federation.”</p>
<p>Second, Butina and Torshin allegedly aimed to establish relationships with American political organizations, including the “GUN RIGHTS ORGANIZATION,” which is clearly the NRA. The affidavit alleges that they “took these steps in order to infiltrate those groups and advance the interests of the Russian Federation.”</p>
<p>The affidavit describes tactics within the Russian operation that included:</p>
<ul><li>Assignments from Torshin to Butina;</li>
<li>Meetings between Butina and American politicians and political candidates;</li>
<li>“BUTINA’s attendance at events sponsored by special interest groups, also attended by U.S. politicians and political candidates”; and</li>
<li>“BUTINA’s reporting back to Moscow through the RUSSIAN OFFICIAL the results of the various encounters with the U.S. politicians and political candidates.”</li>
</ul><p>Components of Butina and Torshin’s tradecraft appear throughout the affidavit—not all of them clever. They communicate by Twitter direct message and email. The FBI agent says he reviewed PDFs that Butina had on her laptop of direct-message conversations between her and Torshin.</p>
<p>Between the two of them, the affidavit alleges, Butina and Torshin worked to put Butina in touch with influential NRA members. The government writes that Butina sought to arrange “a series of ‘friendship and dialogue’” dinners bringing together U.S. political figures with Russians in Washington, D.C., and New York City.</p>
<p>She also attended both the 2016 and 2017 National Prayer Breakfasts and at one point floated bringing Putin himself to the 2017 breakfast. (Torshin also attended the breakfast; he and Butina were <a href="https://www.yahoo.com/news/white-house-pulled-out-of-meet-and-greet-with-conservatives-favorite-russian-a-suspected-mobster-060026495.html">scheduled</a> to meet Trump after the event, but the White House canceled the meeting at the last minute after a national security aide raised concerns.)</p>
<p>Like the indictment released Friday, Monday’s action raises a big question: What role did Americans play, if any, in this alleged conspiracy? Americans are mentioned throughout the affidavit, and they appear to have played a big role in helping Butina with her work. But there is a difference between interacting with conspirators and co-conspiring.</p>
<p>The first American the affidavit mentions, “U.S. Person 1,” is described as an American citizen and political operative whom Butina met around 2013. While this person has not yet been firmly identified, the New York Times reported in December 2017 that Butina had become close with Paul Erickson, an NRA member and activist who <a href="https://www.nytimes.com/2017/12/03/us/politics/trump-putin-russia-nra-campaign.html">pushed for a meeting between Trump and Putin before the 2016 election</a>. According to the affidavit, U.S. Person 1 advised Butina in her effort to develop relationships with key political and business leaders and to influence their views on Russia.</p>
<p>The document refers to a second American, or “U.S. Person 2”; this person is described as a U.S. citizen who was involved in communications about the “friendship and dialogue” dinners, which Butina allegedly began to organize as early as March of 2016.</p>
<p>The timeline of Butina’s work, as described in the affidavit, runs from March 2013 to February 2017. In March 2015, Butina allegedly reached out to U.S. Person 1 about a “project proposal,” seeking that person’s feedback. According to the affidavit, Butina wrote in her proposal that a major U.S. political party—clearly, in context, the Republican Party—would likely win control of the U.S. government after the 2016 elections. Her email goes on to say that the party is “traditionally associated with negative and aggressive foreign policy, particularly in regards to Russia. However, now with the right to negotiate seems best to build konstrukivnyh [sic] relations.” Consider Butina’s language as quoted—and redacted—in the affidavit: the “[c]entral place and influence in the [POLITICAL PARTY 1] plays the [GUN RIGHTS ORGANIZATION]. The [GUN RIGHTS ORGANIZATION] [is] the largest sponsor of the elections to the US congress, as well as a sponsor of The CPAC conference and other events.” According to the affidavit, Butina also described her desire for money to participate in all major upcoming GOP conferences. The government alleges that the same email detailed Butina’s relationships with NRA leadership, Butina and Torshin’s connections with other NRA officials, and instances in which Butina had been introduced to GOP leaders.</p>
<p>U.S. Person 1 responded later that month with a recommended list of “potential media, business, and political contacts” who would be interested in Butina’s project, saying most of those contacts could be reached through her existing political network. On Oct. 4, 2016, U.S. Person 1 allegedly emailed an acquaintance: “Unrelated to specific presidential campaigns, I’ve been involved in securing a VERY private line of communications between the Kremlin and key POLITICAL PARTY 1 leaders through, of all conduits, the [GUN RIGHTS ORGANIZATION]” (redactions in affidavit).</p>
<p>The affidavit describes Butina’s efforts to enlist U.S. Person 2 as a partner in building the back channel, which appear to have included a fair amount of flattery. In March 2016, Butina wrote by email that Torshin was “very much impressed” by U.S. Person 2 and appreciated his or her efforts to “restore relations between” the U.S. and Russia. Later that month, Butina confirmed to U.S. Person 2 that a representative of Russian President Vladimir Putin approved of their “Russian-American project” to build a “communication channel.”</p>
<p>During and after the 2016 election campaign, both U.S. Person 1 and U.S. Person 2 participated in Butina’s efforts to coordinate the Russian presence at the 2017 National Prayer Breakfast. In the final email documented in the affidavit, Butina seemingly confirms her connection to the Russian government to U.S. Person 2: “Our delegation could not stop chatting about your wonderful dinner. My dearest President has received ‘the message’ about your group initiatives and your constructive and kind attention to the Russians.”</p>
<p>The affidavit spins a fascinating yarn, but it’s not yet clear whether it is a significant component of<em> L’Affaire Russe</em>. Is this operation in any meaningful way connected to the hacking operation, to the social media operation, or to apparent efforts to reach out to individuals associated with the Trump campaign and organization during the period of the campaign? That remains opaque. As we suggested above, it is too early to determine whether this action represents another major front opening up in the criminal investigative problems facing President Trump with respect to Russian electoral interference or whether it is a sideshow affecting a discrete group of people at some remove from the president and the core of the Russia scandal.</p>
<p>What is clear, however, is that only a few hours before all this emerged, the president of the United States stood next to a dictator accused of interfering in the U.S. electoral system, described the investigation of those allegations as a “<a href="https://twitter.com/realDonaldTrump/status/1018738368753078273">Rigged Witch Hunt</a>,” and seemed unable to acknowledge the basic truth that Russian actors have been violating U.S. criminal laws in a fashion that no self-respecting democracy would consider acceptable. Barely had he finished speaking when his own Justice Department made new allegations of a different form of interference by a different group of Russians in a different aspect of America’s political life.</p>
<p>As Trump would say, we’ll see what happens.</p>
Mon, 16 Jul 2018 20:56:43 -0400Victoria Clark, Mikhaila R. Fogel, Matthew Kahn, Quinta Jurecic, Benjamin Wittes15518Climate Change Is Real at the FBI—and Here is the Data to Prove Ithttps://www.lawfareblog.com/climate-change-real-fbi-and-here-data-prove-it
<p>Rank-and-file confidence in the FBI’s senior leadership has taken a sharp hit.</p>
<p>That’s the bottom line from the bureau’s latest “climate survey,” the results of which we obtained on Friday through a Freedom of Information Act (FOIA) lawsuit. Across an array of metrics, both at headquarters and in the FBI’s 56 field offices, employees still express high <em>esprit de corps</em> about the FBI itself and their work for the bureau. But when asked about confidence in the vision of the FBI director, the value of direct communications from him, the honesty and integrity of senior bureau leaders, or respondents’ respect for those leaders, there is a striking drop in confidence from previous years. Some questions from prior years that might have been particularly evocative were not even asked in this most recent survey.</p>
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<p>There are a number of reasons FBI employees might be feeling alienated from the leadership. This year’s data, collected in February and March, captures reactions to a number of major developments over the past year, including the firing of James Comey as FBI director, the removal of Deputy Director Andrew McCabe, countless attacks by President Trump on federal law enforcement, the controversy over text exchanges between counterintelligence agent Peter Strzok and former FBI lawyer Lisa Page, and the proliferation of a conservative media narrative that portrays the FBI as ground zero in a “Deep State” conspiracy. Because the data was collected early this year, it does not capture reaction to the <a href="https://www.lawfareblog.com/document-justice-department-inspector-general-final-report-clinton-email-investigation">inspector general’s investigation</a> of the Clinton email probe and the severe <a href="https://www.lawfareblog.com/nine-takeaways-inspector-generals-report-clinton-email-investigation">criticisms</a> of agents and of Comey within the IG report, nor does it capture reaction to the separate <a href="https://www.lawfareblog.com/document-doj-inspector-general-report-andrew-mccabe">report</a> on McCabe. But the data is likely to reflect reactions to those investigations while they were underway.</p>
<p>Significantly, it also captures reactions to Director Christopher Wray’s comparatively low profile in public defense of the bureau while the agency has been under attack. During the House Judiciary and Oversight Committees’ joint <a href="https://www.washingtonpost.com/world/national-security/embattled-fbi-agent-to-appear-before-congress/2018/07/11/7754ad14-854e-11e8-8553-a3ce89036c78_story.html?utm_term=.a00bd75ae223">hearing</a> last week, Strzok was confronted with repeated insinuations that the FBI investigation into the Trump campaign’s ties with Russia was driven by his personal political views. Strzok made a <a href="https://www.washingtonpost.com/video/politics/wirereuters/strzok-accusation-of-bias-deeply-corrodes-the-fbi/2018/07/12/44d616a2-85e9-11e8-9e06-4db52ac42e05_video.html">passionate defense</a> of the FBI’s investigative safeguards and hit back at his questioners for their “deeply destructive” conduct. The severe lapses in judgment that led to Strzok’s current predicament make him a highly imperfect figure to defend the FBI in public right now. Yet in a year in which President Trump and his allies in Congress and the media have repeatedly accused the FBI of bias and corruption, Strzok’s response stands out as one of the most spirited instances in which an FBI official—albeit a suspended one—has spoken forcefully in the institution’s defense.</p>
<p>Wray has spoken up episodically, defending the bureau publicly <a href="https://www.nbcnews.com/politics/justice-department/fbi-director-christopher-wray-defends-agency-following-trump-tweets-n827446">in congressional testimony</a> at various times and at a <a href="https://livestream.com/accounts/16944724/events/8249489/player?width=640&amp;height=360&amp;enableInfoAndActivity=true&amp;defaultDrawer=&amp;autoPlay=true&amp;mute=false">press conference</a> after the inspector general’s report was released. But he has often chosen to remain silent. To some extent, this is understandable; it reflects the fact that Wray is in an impossible position. If he speaks out aggressively, he will antagonize the president and could get himself fired, losing the ability to defend the organization more quietly and ensure its independence at a time of genuine crisis. (Wray may have more leverage on this score than he thinks he does or than his predecessors had because of the political costs that Trump would likely incur in firing his hand-chosen FBI director after having previously dismissed another one.) Wray also appears not to admire his predecessor’s high profile. At a recent meeting, Wray told participants that the FBI “needs more plough horses, not show horses,” a comment that at least one person present took as a slight directed at Comey. But Wray’s reticence, justified or not, risks leaving the FBI’s rank and file feeling undefended and feeling frustrated that nobody is speaking for the them.</p>
<p>We submitted our FOIA request for the results of the FBI’s most recent climate survey—data that the FBI has <a href="https://vault.fbi.gov/FBI%20Field%20Office%20and%20Headquarters%20Climate%20Survey%20Results">released</a> in the past—to see how badly this combination of factors has eroded FBI staff confidence in its leadership. Much to our surprise, the FBI failed to provide the material in a timely manner. So we reached out to our friends at <a href="https://protectdemocracy.org/">Protect Democracy</a>, and they gamely represented us in <a href="https://www.lawfareblog.com/climate-change-fbi-why-we-sued-bureau-last-week">suing over the data</a>. These efforts bore fruit this past week, and we received the survey results on Friday morning.</p>
<p>As Comey <a href="https://www.lawfareblog.com/lawfare-podcast-james-comey-higher-loyalty">recently described</a> on the Lawfare Podcast, the climate survey is a “very important tool” for measuring FBI morale and leadership. Last year, although President Trump claimed that he removed Comey because the FBI was “in turmoil” and needed “somebody . . . competent” as director—not because of the ongoing Russia investigation—<a href="https://vault.fbi.gov/FBI%20Field%20Office%20and%20Headquarters%20Climate%20Survey%20Results/FBI%20Director%20James%20Comey%20Climate%20Survey%20Results%20%282015-2017%29/view">prior climate surveys</a> showed that, whatever the real reason for Comey’s firing, the bureau was certainly not in turmoil. As the New York Times <a href="https://www.nytimes.com/2017/08/16/us/politics/comey-fbi-agents-confidence-survey.html">reported</a> when it obtained this material, morale at the FBI had in fact improved during Comey’s tenure, and the former director was widely admired among FBI personnel. This year’s climate survey seemed like a good way of assessing the impact of events—particularly since a <a href="https://vault.fbi.gov/FBI%20Field%20Office%20and%20Headquarters%20Climate%20Survey%20Results">body of public data from climate surveys dating to 2013</a> offers useful points of comparison.</p>
<p>Each climate survey asks all FBI employees to respond to more than 100 individual questions addressing different aspects of their relationship with their work and the FBI more broadly. For each question, FBI employees are asked to respond with a numerical ranking between 1 and 5, which reflects the worst to the best response from the perspective of the institution. In the case of statements, respondents are asked to rank the extent to which they agree. The survey inverts the responses for some questions that are framed negatively—such as “I am burned out”—in order to maintain this scale. No matter how the question is worded, 5 is always the best answer for the FBI and 1 is always the worst in the results. The FBI <a href="https://vault.fbi.gov/FBI%20Field%20Office%20and%20Headquarters%20Climate%20Survey%20Results">views</a> scores of 3.81 or higher as indicative of “success in those areas,” while scores between 3 and 3.80 reflect “positive feedback . . . with potential for improvement” and scores of 2.99 or lower indicate “potential areas of concern” where “development . . . would be recommended.”</p>
<p>Here is the entirety of the bureau’s production to us:</p>
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</script><p></p><noscript><br /><a href="https://assets.documentcloud.org/documents/4599804/2-2018-FO-amp-HQ-Climate-Survey.pdf">2 2018 FO &amp; HQ Climate Survey (PDF)</a><br /><br /><a href="https://assets.documentcloud.org/documents/4599804/2-2018-FO-amp-HQ-Climate-Survey.txt">2 2018 FO &amp; HQ Climate Survey (Text)</a><br /></noscript>
<p>While many of the survey questions provide insight into FBI employees’ morale and confidence in their leadership, we identified eight questions before seeing this year’s results that we thought would particularly illuminate the bureau’s overall mood. These questions asked the extent to which respondents agreed with the following statements:</p>
<ul><li>“I am proud to work for the FBI”;</li>
<li>“I am cynical about the FBI”;</li>
<li>“I look forward to going to work”;</li>
<li>“I have a high level of respect for the FBI’s senior executives”;</li>
<li>“Direct communications from the Director help me feel connected to the FBI”;</li>
<li>“The FBI’s senior executives maintain high standards of honesty and integrity”;</li>
<li>“Employee morale is important to the FBI’s senior executives”; and,</li>
<li>“I am onboard with the Director’s vision and ideas”/ “I am inspired by the Director‘s vision and leadership.”</li>
</ul><p>The first three of these questions are general measures of morale that should capture how the developments of the past year have affected the manner in which employees view their relationship with the FBI as a whole.</p>
<p>The next five, meanwhile, relate specifically to employee perceptions of and relationships with the FBI director and other senior leadership. Aside from minor non-substantive wording changes and the apparent omission of the “direct communications” question from the 2015 climate survey, the first seven questions had all been included in the five previous climate surveys. The eighth question, meanwhile, was added to the 2016 climate survey in a slightly different form: “I’m on board with the Director’s vision and ideas.” It was changed to “I am inspired by the Director’s vision and leadership” in the 2017 climate survey. The 2018 survey retained this latter wording.</p>
<p>The results for each climate survey provide detailed responses for individual FBI field offices and administrative components, as well as two sets of aggregate numbers: one for the field offices as a whole and one for FBI headquarters in Washington, D.C. (which is separate from the Washington, D.C., field office). The following charts compare the results from the 2018 climate survey to those of the past five years:</p>
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<script src="//assets.documentcloud.org/embed/loader/enhance.js"></script><p>For both the field offices and headquarters, the responses for all seven of the questions that were administered between 2013 and 2016 improved—particularly in the period between 2014 and 2016, after Comey took over as director. This pattern reversed itself somewhat in 2017, when the responses for all but one of the questions—“I look forward to going to work”—declined. The most precipitous decline was for “I have a high level of respect for the FBI’s senior executives,” which declined by 0.27 points at headquarters and 0.28 points among the field offices in 2017. “Employee morale is important to the FBI’s senior executives” also took a hit; it declined by 0.25 and 0.21 points, respectively. (While there was also a sharp decline for “I am inspired by the Director’s vision and leadership,” this decline may be partially attributable to the change in language in the question discussed above.) In our view, this pattern most likely reflects discontent with the FBI’s controversial role in the 2016 presidential election and its aftermath. That said, even with this decline, the 2017 responses for all eight of these questions across field offices and headquarters were above the 3.8 threshold that the FBI considers indicative of “success.” And despite the dip in 2017, they still reflect substantial improvement over 2013.</p>
<p>The 2018 survey results, however, tell a different story. The responses for the three more generic questions—regarding feelings of pride and cynicism toward the FBI and whether the respondent looks forward to work—were relatively static and in some cases even improved slightly. Employees are still proud to work for the FBI. They still look forward to going to work. There is no growth in cynicism about the institution. This general confidence in the institution extends to other questions as well. FBI employees still believe in the mission of the FBI as much as they did in last year’s results. They are still as likely to recommend the FBI as a good place to work as they were last year. This is all good news for the bureau.</p>
<p>The bad news is that confidence in the institution’s leadership has taken a big hit. The four remaining questions specifically related to the FBI director and senior leadership all garnered precipitous declines in confidence—declines much sharper than in prior years. The most significant drop was for the question “I am inspired by the Director’s vision and leadership.” Confidence declined by 0.56 points at headquarters and by 0.62 points in the field offices. All of the remaining responses declined by at least 0.30 points, with the exception of “I have a high level of respect for the FBI’s senior executives,” which declined by only 0.15 points at FBI headquarters.</p>
<p>In other words, for both FBI headquarters and field offices, all four of the metrics regarding how FBI personnel view the director and senior leadership declined significantly from 2017 to 2018. And in all but one of those cases, the decline was greater than any other decline that had occurred in a single year in relation to those questions over the prior five years for which data is available.</p>
<p>This general trend holds true across most individual field offices and components, with some variation. Yet certain offices experienced particularly dramatic changes. The chart below, for example, shows the responses for the FBI’s counterintelligence division, referred to varyingly by the acronym “CI” or “CD” on the climate surveys:</p>
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<script src="//assets.documentcloud.org/embed/loader/enhance.js"></script><p>Note the particularly sharp drop, by 0.87 points, among FBI counterintelligence professionals on the question “I am inspired by the Director’s vision and leadership.” This steep drop in confidence in Wray among the counterintelligence division is most likely attributable to the central role the division played in the Russia investigation and the fact that its work—through Strzok, who used to be head of the counterintelligence division—has become a primary focus of attacks by the president and his supporters. This is, after all, where the alleged <a href="https://twitter.com/realDonaldTrump/status/983662953894436864">“WITCH HUNT!!!”</a> started, and it’s not too surprising that the witch hunters are not feeling especially supported by the director—or particularly inspired by his vision.</p>
<p>To be fair, all of the 2018 responses discussed here remain above the 3.0 threshold for what the FBI considers “potential areas of concern.” (Actually, the same is true for all but one of the more than 200 average field office or headquarter responses, raising the question as to whether this standard may perhaps be a bit too lenient.) But the drop does move most of these metrics below the threshold of what the FBI considers success—some of them significantly so. Regardless, such a sudden and marked decline in how employees view the director and other senior executives should be a significant concern for the bureau’s leadership. At a minimum, a strained relationship with his employees could make Wray’s own job more difficult and his subordinates less willing to take risks or innovate for fear that he will not support them. While these tensions do not appear to have substantially affected overall morale as of yet, at some point in the future they could, weakening the FBI as an institution.</p>
<p>One final feature of note in the 2018 climate survey regards questions that the survey <em>omits</em>. From 2013 to 2017, every FBI climate survey asked whether respondents believed that “employee morale is important to the FBI’s senior executives.” This question disappeared from the 2018 survey. Such changes are not unheard of, as each climate survey departs slightly from its predecessor by rewording, adding and removing questions. And the current survey did include a number of questions about how division and unit leaders value morale. Nonetheless, this question seems like a particularly important one to ask in 2018, a year in which the FBI has faced unprecedented external criticism with obvious potential implications for morale—and a year in which the institution has faced grumbling over whether senior leadership is being aggressive enough in responding. The 2018 climate survey also omitted the similarly long-standing catch-all, “Considering everything, how satisfied are you with the FBI?” This, too, could have been a particularly relevant query this year in light of apparently falling confidence in the leadership of an organization that employees still seem to value a great deal.</p>
<p>What do these confidence numbers mean for the long term? That’s unclear. To the extent that they reflect the turmoil associated with leadership transitions, political attacks and investigations of the bureau’s senior managers, they will presumably improve as Wray establishes his footing, the attacks cease (if and when they do), and the investigations fade into the past.</p>
<p>The concern for Wray is whether these numbers may reflect consternation among the workforce over his plough-horse-not-show-horse leadership style—that is, a widespread belief that he is not speaking for the agency aggressively nor defending it actively. For institutions like the FBI, morale and leadership matter. Employees with a shortage of the former will work less hard and collaborate less effectively. They will take fewer risks and innovate less for fear that they will not be supported. While Wray must weigh the risk of removal before taking a more aggressive stance, he must also be cognizant of the negative trends revealed by this year’s climate survey. Failing to do so risks alienating him from the organization he will be in charge of for nine more years.</p>
Sun, 15 Jul 2018 11:00:02 -0400Scott R. Anderson, Benjamin Wittes15510Russia Indictment 2.0: What to Make of Mueller’s Hacking Indictmenthttps://www.lawfareblog.com/russia-indictment-20-what-make-muellers-hacking-indictment
<p>The <u><a href="https://www.lawfareblog.com/document-special-counsel-indicts-12-russian-intelligence-officers-hacking-dnc-and-clinton-campaign">indictment</a></u> Friday morning of 12 Russian military intelligence officials in connection with the 2016 election hacks and the resulting distribution of purloined emails was not a total surprise. Observers of the Mueller investigation have been expecting it for a long time, particularly since the Feb. 16 <u><a href="https://www.lawfareblog.com/document-special-counsel-indicts-russian-nationals-and-entities">indictment</a></u> of 13 Russian individuals and three companies over the <u><a href="https://www.lawfareblog.com/russian-influence-campaign-whats-latest-mueller-indictment">social media campaign</a></u> conducted by the so-called Internet Research Agency.</p>
<p>But if the hacking indictment was generally expected, nobody seemed to see it coming this week before today’s announcement of an 11:45 am press conference. Special Counsel Robert Mueller moved with his usual combination of patience and strict operational security, and even though Acting Attorney General Rod Rosenstein briefed President Trump on the coming action before the Leaker in Chief left town, the matter held until Rosenstein disclosed it at a Justice Department press conference.</p>
<p><iframe allowfullscreen="allowfullscreen" frameborder="0" height="330" src="https://www.c-span.org/video/standalone/?448407-1/12-russian-intelligence-officers-indicted-dnc-hacking" width="512"></iframe></p>
<p>Before turning to what the indictment alleges, and what we can learn from it, it’s worth zooming out to an important macro point about the investigation that led to this action: This was the investigation over which the president of the United States fired James Comey as FBI director.</p>
<p>This is the investigation Comey confirmed on March 20, 2017, when he told Congress, “I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election.”</p>
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<p>This was also the investigation that multiple congressional committees have spent more than a year seeking to discredit—most recently Thursday, when two House panels hauled the former deputy assistant director of the FBI’s Counterintelligence Department, Peter Strzok, a career FBI agent who worked on the Russia probe, up to Capitol Hill for 10 hours of public, televised, abusive conspiracy theorizing. When the president of the United States derides the Mueller investigation as a “witch hunt,” and when congressional Republicans scream at FBI agents, this is the investigation they are trying to harass out of existence.</p>
<p>It is, therefore, fitting that this indictment comes less than one day after the astonishing display House Republicans put on in the Strzok hearing. If Mueller had been trying to remind the public of what the investigation is really about and what the stakes are in it, if he had been trying to make a public statement in response to the Strzok hearing, he could not have timed this action better.</p>
<p><iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/6810132/height/90/theme/custom/autoplay/no/autonext/no/thumbnail/yes/preload/no/no_addthis/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe></p>
<p>But, to be clear, Mueller was not trying to make a press statement. We know that not merely because that’s not the way Mueller operates but also because Rosenstein said specifically at his press conference that he had briefed the president on the matter before Trump left town—days before the Strzok hearing yet also mere days before Trump has a scheduled meeting with Russian President Vladimir Putin.</p>
<p>The timing of the indictment given the upcoming Helsinki summit is a powerful show of strength by federal law enforcement. Let’s presume that Mueller did not time this indictment to precede the summit by way of embarrassing Trump on the international stage. It is enough to note that he also did not hold off on the indictment for a few days by way of <em>sparing </em>Trump embarrassment—and that Rosenstein did not force him to. Indeed, Rosenstein said at his <u><a href="http://thehill.com/policy/national-security/396902-rosenstein-trump-fully-aware-of-russian-indictments">press conference</a></u> that it is “important for the president to know what information was uncovered because he has to make very important decisions for the country” and therefore “he needs to know what evidence there is of foreign election interference.” But of course Rosenstein and Mueller did not just let Trump know. They also let the world know, which has the effect—intended or not—of boxing in the president as he meets with an adversary national leader.</p>
<p>Put less delicately: Rosenstein has informed the president, and the world, before Trump talks to Putin one-on-one that his own Justice Department is prepared to prove beyond a reasonable doubt, in public, using admissible evidence, that the president of the Russian Federation has been lying to Trump about Russian non-involvement in the 2016 election hacking.</p>
<p>Here are the <u><a href="https://www.justice.gov/file/1080281/download">indictment</a></u> and the Justice Department’s accompanying <u><a href="https://t.co/Jvd1fniMZi">press release</a></u>.</p>
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</script><p></p><noscript> <a href="https://assets.documentcloud.org/documents/4598892/DNC-Hack-Indictment.pdf">DNC Hack Indictment (PDF)</a> <br /><a href="https://assets.documentcloud.org/documents/4598892/DNC-Hack-Indictment.txt">DNC Hack Indictment (Text)</a></noscript>
<p align="center"><strong>What the Indictment Alleges</strong></p>
<p>The indictment alleges a detailed and wide-ranging conspiracy to hack into the computers of the Democratic Congressional Campaign Committee (DCCC), the Democratic National Committee (DNC), Hillary Clinton’s presidential campaign and others and to reveal information in order to interfere with the 2016 U.S. presidential election. The special counsel charges 12 officials of the Russian military intelligence agency (“GRU”) with targeting more than 300 individuals affiliated with the Democratic Party or the campaign and leaking tens of thousands of stolen documents.</p>
<p>Starting in March 2016, the indictment alleges, a unit of Russia’s GRU military intelligence organization began sending emails to dozens of employees and volunteers in the Clinton campaign. The conspirators engaged in “spearphishing,” or sending fraudulent emails with embedded links to GRU-created websites disguised to look like trusted entities, such as Google security notifications, ostensibly asking recipients to change their password but, in reality, tricking the targeted users into revealing their login credentials.</p>
<p>Using these stolen credentials, the hackers logged into the targeted users’ personal and campaign email accounts. Later that month, the hackers began researching the computer networks of the DCCC and DNC to identify technical vulnerabilities and connected devices. In April 2016, the conspirators hacked into the DCCC computer network and installed malware to spy on users and steal information.</p>
<p>According to the indictment, the Russians designed their hacking operation to use an overseas computer to relay communications from their malware via a GRU-leased server in Arizona. By June of 2016, the hackers monitored DCCC employees’ computer activity—logging keystrokes and taking screenshots—on at least 10 different computers and transmitted this information to the Arizona server. The conspirators used their access to the DCCC network to hack into Democratic National Committee in mid-April 2016. Overall, the hackers accessed about 33 DNC computers by the end of June using stolen credentials. As they had with the DCCC, they used malware to explore the DNC network and steal documents, the indictment claims. As they explored the networks and removed data, the indictment alleges, the Russians deleted computer logs and files to obscure evidence of their activities.</p>
<p>Still, the intrusions did not go unnoticed. In May 2016, both the DCCC and the DNC hired cybersecurity firm <u><a href="https://www.politico.com/story/2016/08/dnc-cybersecurity-breach-russia-227039">CrowdStrike</a></u> to discern the extent of the invasions, and the following month, the indictment alleges, the company worked to remove the intruders. Even so, according to the indictment, malware remained on the DNC network until October. The Russians also accessed DNC data through a third-party cloud service in September, the indictment says. </p>
<p>On June 8, 2016—one day before the Trump Tower meeting at which Russian actors met with senior Trump campaign officials promising “dirt” on Hillary Clinton—the indictment alleges that the conspirators launched the website DCLeaks.com, which they labeled as being started by “American hacktivists.” That month, according to the indictment, the group began releasing materials it had stolen from individuals tied to the Clinton campaign as well as documents stolen from other operations dating to 2015, including emails from individuals affiliated with the Republican Party. The conspirators used cryptocurrency to pay for the site, the government asserts, and emails connected to the domain name were also used in spearphishing efforts against the Clinton campaign chairman, John Podesta. The group also created Facebook and Twitter accounts to promote the DCLeaks site, according to the indictment.</p>
<p>In mid-June 2016, when the Democrats publicly acknowledged that they had been hacked, the indictment alleges that the conspirators created the online persona Guccifer 2.0, which they described as a “lone Romanian hacker” to undermine claims of Russian responsibility for the hacks. Interestingly, the Guccifer 2.0 Twitter account followed <u><a href="https://twitter.com/pwnallthethings">one of this article’s authors</a></u> on Twitter that summer:</p>
<p align="center"><img alt="" src="https://lawfare.s3-us-west-2.amazonaws.com/staging/2018/GUCCIFER.png" style="width: 350px; height: 83px;" /></p>
<p>While that particular fact does not appear in the indictment, the indictment does allege that beginning in August 2016, certain other U.S. persons began interacting with the GRU through the Guccifer 2.0 persona. In mid-August, Guccifer 2.0 allegedly received and responded to a request from a candidate for U.S. Congress for documents stolen from the DCCC related to the candidate’s opponent. Guccifer 2.0 also allegedly sent documents to a reporter regarding the Black Lives Matter movement. The indictment then, in more detail, describes contact between Guccifer 2.0 and “a person who was in regular contact with senior members” of the Trump presidential campaign. These people are not named in the indictment.</p>
<p>To release their stolen data, the conspirators did not stop with DCLeaks and Guccifer 2.0, according to the indictment. It describes extensive interaction between the conspirators and an entity, called “Organization 1,” which the <u><a href="https://www.washingtonpost.com/world/national-security/rod-rosenstein-expected-to-announce-new-indictment-by-mueller/2018/07/13/bc565582-86a9-11e8-8553-a3ce89036c78_story.html">Washington Post</a></u> and other news outlets have identified as Wikileaks. In late June 2016, Wikileaks allegedly solicited additional stolen information from Guccifer 2.0, saying that its release of the data “will have a much higher impact than what you are doing.” In early July, citing the upcoming Democratic convention, it allegedly messaged Guccifer 2.0 that “if you have anything hillary related we want it in the next tweo [sic] days” and that “we think trump has only a 25% chance of winning against hillary” so stoking conflict between Clinton and her rival Bernie Sanders “is interesting.”</p>
<p>On July 22, 2016, the government asserts, Wikileaks released more than 20,000 emails and documents stolen from the DNC network by the conspirators and “did not disclose Guccifer 2.0’s role in providing them.” The Democratic convention opened days later and was racked by protests from Sanders supports that led to the resignation of Debbie Wasserman Schultz as DNC chairman. The activities continued through the fall: Between Oct. 7 and Nov. 7, 2016, the indictment contends, Wikileaks released approximately 33 tranches of the more than 50,000 documents stolen from John Podesta.</p>
<p>Based on these factual allegations, the indictment includes 11 counts. The first count, citing all of the facts summarized above, charges nine defendants with conspiracy to violate the Computer Fraud and Abuse Act (<u><a href="https://www.law.cornell.edu/uscode/text/18/1030">18 U.S.C. §§ 1030(a)(2)(C)</a></u>, <u><a href="https://www.law.cornell.edu/uscode/text/18/1030">1030(a)(5)(A)</a></u>, <u><a href="https://www.law.cornell.edu/uscode/text/18/1030">1030(c)(2)(B)</a></u>, <u><a href="https://www.law.cornell.edu/uscode/text/18/1030">1030(c)(4)(B)</a></u>, <u><a href="https://www.law.cornell.edu/uscode/text/18/371">371</a></u> and <u><a href="https://www.law.cornell.edu/uscode/text/18/3559">3559(g)(1)</a></u>). The defendants are specifically charged with:</p>
<ul><li>“knowingly access[ing] a computer without authorization and exceed[ing] authorized access to a computer, and to obtain thereby information from a protected computer, where the value of the information obtained exceeded $5,000”;</li>
<li>“knowingly caus[ing] the transmission of a program, information, code, and command, and as a result of such conduct … intentionally caus[ing] damage without authorization to a protected computer, and … caus[ing] … loss aggregating $5,000 in value to at least one person during a one-year period from a related course of conduct affecting a protected computer, and damage affecting at least ten protected computers during a one-year period”; and</li>
<li>“knowingly falsely register[ing] a domain name and knowingly us[ing] that domain name in the course of committing an offense.”</li>
</ul><p>The second count charges 11 defendants with aggravated identity theft in violation of <u><a href="https://www.law.cornell.edu/uscode/text/18/1028A">18 </a><a href="https://www.law.cornell.edu/uscode/text/18/1028A">U.S.C. §§ 1028A(a)</a><a href="https://www.law.cornell.edu/uscode/text/18/1028A">(1) and(2)</a></u>. The indictment describes the offense as “knowingly transfer[ing], possess[ing], and us[ing], without lawful authority, a means of identification of another person during and in relation to” the commission of computer fraud. The count cites eight victims whose personal, DCCC or DNC email username and passwords the defendants allegedly stole between March 21 and July 6, 2016.</p>
<p>The 10th count charges the defendants with conspiracy to launder more than $95,000 in cryptocurrency with the intention of promoting unlawful activity in the United States in violation of <u><a href="https://www.law.cornell.edu/uscode/text/18/1956">18 </a><a href="https://www.law.cornell.edu/uscode/text/18/1956">U.S.C. § 1</a><a href="https://www.law.cornell.edu/uscode/text/18/1956">956(h)</a></u>. The document outlines efforts the defendants made from roughly 2015 through 2016 to acquire and mine bitcoin for the purpose of funding their hacking activities, including the purchase of computer infrastructure, domain names and key accounts.</p>
<p>The last count charges two of the GRU officers, Aleksandr Vladimirovich Osadchuk and Anatoliy Sergeyevich Kovalev, with conspiracy to violate the Computer Fraud and Abuse Act, in violation of <u><a href="https://www.law.cornell.edu/uscode/text/18/371">18 U.S.C. § 371</a></u>. The object of the conspiracy was to hack into and steal voter information stored on computers used by people and entities administering the 2016 election. The indictment alleges that in July 2016 Kovalev, along with others not named, hacked a state board of elections website and “stole information related to approximately 500,000 voters.” In August 2016, Kovalev and his co-conspirators allegedly used some of the same infrastructure to hack into a vendor that provided voter verification software. After the FBI issued an alert in August 2016 about the hacking of the state election board, Kovalev erased his search history, and he and his co-conspirators erased records from the accounts they used in hacking election boards and related entities, according to the indictment. In October, Kovalev and others targeted state and local election offices in Georgia, Iowa and Florida, seeking to identify their websites’ vulnerabilities. And in November 2016, the conspirators sent more than 100 spearphishing emails to state and local election officials in Florida.</p>
<p align="center"><strong>What the Indictment Reveals About the Hacking Operation</strong></p>
<p>This indictment provides a great deal of information about the extent and internal structure of the Russian government side of the 2016 hacking operation. It also confirms private-sector reporting about the DNC hack, the clean-up operation, the phishing of Podesta, and the operation to distribute stolen emails through Wikileaks and on social media.</p>
<p>Additionally, the indictment shows a massive, and successful, counterintelligence operation by the U.S. government against the Russian government. U.S. authorities do not rely merely on technical forensics for the conclusion that the hack and release of emails was a Russian operation; the indictment also lays out the departments within the Russian government that were behind it, specific individuals who were involved, which officers did what and when, the slang terms used internally, and the breakdown of responsibilities within the teams—down to identifying the specific officers with hands on keyboards.</p>
<p>The indictment describes a number of separate events associated with the 2016 operation, but let’s start with the hack of Hillary Clinton’s campaign manager, Podesta, in March 2016 by GRU officer Aleksey Lukashev. This event had been traced back to the GRU in the fall of 2016. The indictment strongly supports those earlier attributions and adds additional detail—such as the name of the person allegedly at the keyboard.</p>
<p>Based on the public record and the new information in the indictment, here is what we now know happened leading up to the hack and release of John Podesta’s emails.</p>
<p>On March 19, 2016, Podesta received a spearphishing email, ostensibly from Google but actually from the GRU. We knew this even before Friday’s indictment, ironically, because Wikileaks published all of John Podesta’s stolen emails, <u><a href="https://wikileaks.org/podesta-emails/emailid/36355">including the spearphishing email itself</a></u>. The indictment names GRU officer Aleksey Lukashev as the sender, but the email itself and its public attribution to the GRU are not new. From the phishing email in the Wikileaks archive, we are able to reconstruct what the spearphishing email looked like and the actions taken by Podesta that resulted in his emails dominating headlines in the final few weeks of the 2016 election campaign.</p>
<p class="rtecenter"><img alt="" src="https://lawfare.s3-us-west-2.amazonaws.com/staging/2018/PODESTA%20SPEARPHISH.png" style="width: 492px; height: 400px;" /></p>
<p align="center"><em>John Podesta spearphishing email (reconstruction)</em></p>
<p>Although this email was carefully crafted by Russian intelligence officers to look authentic, this email did not come from Google; there had been no genuine attempt to log in to Podesta’s email from Ukraine, and the link on “Change Password” led to a website operated by the GRU. Steps taken with this email include tricks like constructing the text “Someone has your password” using non-English variants of the letter “o” so as to evade automatic detection by Google’s spam filters.</p>
<p>It was also known before Friday what happened next: Podesta forwarded the email to members of his staff. <u><a href="https://wikileaks.org/podesta-emails/emailid/36355">They wrongly concluded that the email was genuine</a></u>, and Podesta clicked on the link. We know this because this email chain is among the messages leaked by Wikileaks.</p>
<p>This much we already knew: the “Change Password” button on the phishing email took Podesta to a website controlled by the GRU, but first it bounced through the URL shortening service Bit.ly. Unfortunately for the GRU, here the hackers screwed up. The Bitly link reveals a lot of information about the GRU operation, and using this information we can reconstruct what Podesta saw when he clicked the link:</p>
<p> </p>
<p class="rtecenter"><img alt="" src="https://lawfare.s3-us-west-2.amazonaws.com/staging/2018/PODESTA%20PHISH.png" style="width: 551px; height: 350px;" /></p>
<p align="center"><em>Reconstruction of the John Podesta phishing page</em></p>
<p>The indictment confirms that although this website was designed to look like a login page for Google, it was, in fact, operated by the Russian government. But the GRU made a mistake that <u><a href="https://www.secureworks.com/research/iron-twilight-supports-active-measures">allowed private-sector researchers to tie the phishing of Podesta to the GRU</a></u> even before Friday’s indictment. When shortening the spearphishing link to send to Podesta using URL-shortening service Bitly, the GRU officer running the operation was logged in. This error allowed private investigators to connect the Podesta phishing email to huge numbers of other phishing emails sent by the GRU. Mueller now adds that, the specific officer who was logged in was, in fact, Lukashev, and his account name was “john356gh.”</p>
<p>Although this attribution was previously known, the indictment makes public some previously unknown details. For example, it’s now clear that this phishing campaign wasn’t done merely on behalf of the GRU but was done <em>internally </em>by GRU officers directly. We now know which officers at the GRU were at the keyboard conducting the operation: Lukashev managed the spearphishing infrastructure, and another officer, Ivan Sergeyevich Yermakov, spent time researching the specific targets at the DNC who were sent the emails. All of this gives the lie to Russia’s claim Friday, in response to the indictment, that the charges are “<u><a href="https://sputniknews.com/russia/201807131066335137-russian-foreign-ministry-indictments/">mud-slinging</a></u>” intended to “<u><a href="https://www.rt.com/usa/433000-indictment-russians-politically-motivated-ministry/">spoil the atmosphere</a></u>” ahead of the Trump-Putin summit.</p>
<p>The indictment also sheds new light on the hack of the DNC and the DCCC. This is the intrusion that cybersecurity firm CrowdStrike was called in to clean up. In June 2016, Guccifer 2.0 <u><a href="https://guccifer2.wordpress.com/2016/06/30/faq/">claimed</a></u> that this breach happened by means of a “<u><a href="https://www.fireeye.com/current-threats/what-is-a-zero-day-exploit.html">zero-day vulnerabilty</a></u>,” but we now know this is not true. The initial intrusion into the DCCC network took place on April 12, 2016, using the credentials of a DNC employee obtained by spearphishing. Using these stolen credentials, GRU officers Kozachek and Yershov implanted “X-Agent” malware on at least 10 DCCC computers, and using this access, the hackers stole passwords, monitored computer activity, and took documents from the DCCC network to distribute later.</p>
<p>This X-Agent malware was also known to the private sector before Friday’s indictment. X-Agent is a malware toolkit of APT28, one of the well-known Russian state hacker groups, and had been previously strongly attributed to the GRU by dozens of cybersecurity firms. Although not specifically mentioned in the indictment, the specific malware recovered from the DCCC network <u><a href="https://twitter.com/RidT/status/751325844002529280">communicated with the same command-and-control infrastructure used by the GRU</a></u> when APT28 <u><a href="https://www.bbc.com/news/technology-36284447">hacked the German Bundestag</a></u> in 2015.</p>
<p>But the indictment tells us something that <em>wasn’t</em> previously known about the extent of knowledge within the U.S. government of this specific operation. The U.S. was able to determine not merely that X-Agent was a GRU operative, and that GRU officer Yermakov was the man at the keyboard, but was able to see the actions Yermakov took as he performed target research against the DCCC and as he researched commands used to operate the malware and steal emails from the DCCC’s internal server.</p>
<p>The indictment also gives some additional details on how the emails got from the GRU to Wikileaks. Although no serious observers previously doubted the connection—Guccifer 2.0’s very <u><a href="https://guccifer2.wordpress.com/2016/06/15/dnc/">first post openly announced that Wikileaks had been given documents</a></u>—the indictment shows that the mechanism for this was an email from Guccifer 2.0 to Wikileaks containing an encrypted repository via email, entitled “wk dnc link1.txt.gpg.”</p>
<p>Finally, the indictment contains new information about the way the GRU paid for infrastructure to support the operation to hack and release documents. According to the indictment, the GRU made payments using the pseudonymous cryptocurrency Bitcoin. It should not be especially surprising that the GRU used Bitcoin—it allows payments to be made without a direct trail leading back to the Russian government—but the GRU officers were careful. Rather than just paying for Bitcoin with currency from an exchange and then trying to obfuscate through multiple Bitcoin wallets before spending it, the GRU also mined their own, allowing it to be anonymous from the start, as well as purchasing Bitcoin using prepaid cards in order to avoid direct connections between the GRU’s hacking infrastructure and the GRU itself. Still, the U.S. government was able to trace all these transactions back to the GRU.</p>
<p>In sum, the indictment confirms a great deal of reporting that was already public on technically attributing the 2016 hack and release of documents to the GRU. But it also shows a significant and successful U.S. counterintelligence operation that gives insights into the breadth and scope of U.S. attribution capabilities—technical, financial and intelligence-led attribution down to which individuals within the Russian government were behind aspects of the hack, their responsibilities within the organization, their communications and even the specific terms they searched for as they worked.</p>
<p align="center"><strong>Identifying the Unknown</strong></p>
<p>The indictment describes a number of interactions between the alleged conspirators, in the persona of Guccifer 2.0, and several unnamed U.S. persons and other entities whose identities the document obscures. Most of these individuals have already been publicly identified. The indictment, for example, mentions a “person in regular contact with senior members” of the Trump campaign, to whom the conspirators wrote on Aug. 15, 2016. As the indictment describes the interaction, Guccifer 2.0 wrote: “thank u for writing back ... do u find anyt[h]ing interesting in the docs i posted?” The indictment continues:</p>
<blockquote><p>On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow ... it would be a great pleasure to me.” On or about September 9, 2016, the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded, “[p]retty standard.”</p>
</blockquote>
<p>This person has been identified as Roger Stone—by Stone himself. Stone published the very exchange described in the indictment on his website, <u><a href="https://stonecoldtruth.com/roger-stone-the-smoking-gun-aims-fires-misses/">StoneColdTruth</a></u>, in March 2017.</p>
<p>The indictment also briefly mentions an interaction between the conspirators and a reporter to whom they sent documents regarding the Black Lives Matter movement. Lee Stranahan of Breitbart News and Sputnik has <u><a href="https://www.yahoo.com/news/fbi-document-cache-sheds-light-inner-workings-russias-u-s-news-propaganda-network-172317008.html">publicly disclosed</a></u> his interaction with Guccifer 2.0 and said Friday on <u><a href="https://twitter.com/stranahan/status/1017832295527567360">Twitter</a></u> that he is the journalist mentioned in the document. The special counsel also describes an exchange in which Guccifer 2.0 directly offers stolen emails from “Hillary Clinton’s staff” to a U.S. reporter. The Smoking Gun website has <u><a href="https://twitter.com/tsgnews/status/1017838697268563968?ref_src=twsrc%5Etfw">claimed</a></u> to be this reporter.</p>
<p>The indictment describes a “state lobbyist and online source of political news” as having received 2.5 gigabytes of stolen data from Guccifer 2.0, including donor records and personal identifying information of more than 2,000 Democratic donors. The <u><a href="https://www.wsj.com/articles/how-alleged-russian-hacker-teamed-up-with-florida-gop-operative-1495724787">Wall Street Journal</a></u> reported in March 2017 that this individual is Florida GOP operative Aaron Nevins. Nevins, who posted under the pen name Mark Miewurd on the website HelloFLA!, later described his interaction with Guccifer 2.0 in an interview with the <u><a href="http://www.sun-sentinel.com/news/politics/fl-reg-russia-hacker-guccifer-connection-20170525-story.html">Sun Sentinel</a></u>.</p>
<p>There is one major U.S. interlocutor mentioned who remains something of a mystery. According to the indictment, on Aug. 15, 2016, Guccifer 2.0 received a request for stolen documents from a congressional candidate and sent documents to the candidate. While it is not immediately clear who the congressional candidate may have been, the New York Times in December 2016 <u><a href="https://www.nytimes.com/2016/12/13/us/politics/house-democrats-hacking-dccc.html">reported</a></u> on several Democratic congressional candidates who were victims of leaks of hacked DNC and DCCC information.</p>
<p align="center"><strong>No Collusion?</strong></p>
<p>In response to the indictment, the White House released <u><a href="https://twitter.com/PeterAlexander/status/1017823197159444482">a statement saying</a></u>,</p>
<blockquote><p>As Deputy Attorney General Rod Rosenstein said today:</p>
<ul><li>There is no allegation in this indictment that Americans knew that they were corresponding with Russians.</li>
<li>There is no allegation in this indictment that any American citizen committed a crime.</li>
<li>There is no allegation that the conspiracy changed the vote count or affected any election result.</li>
</ul><p>Today’s charges include no allegations of knowing involvement by anyone on the campaign and no allegations that the alleged hacking affected the election result. This is consistent with what we have been saying all along.</p>
</blockquote>
<p>Leave aside the obvious falsity of the White House’s assertion that the indictment is “consistent” with the president’s prior statements, which have repeatedly questioned Russia’s involvement in election interference. Leave aside also the question of why the White House’s response to an indictment on this subject made no mention, at all, of the unprecedented attack by a foreign adversary on foundational elements of U.S. democracy and instead merely defended the president’s campaign as not having knowingly participated in it.</p>
<p>The statement is largely accurate, as is the Rosenstein statement on which it draws. This indictment does not charge or allege specific criminal misconduct by any American. And it is careful—as was the indictment in February—not to sweep broadly in its claims about people on this side of the Atlantic. That said, the indictment does not in any sense foreclose the possibility of substantial, knowing and even criminal involvement by Americans. And it actually moves the ball forward on possible collusion, which would likely take the legal form of criminal conspiracy, in important respects.</p>
<p>First, while the indictment does not charge any American with specific criminal conduct, it does describe conduct by Americans that, depending on further factual development, raises potentially serious questions. The most striking example of this occurs in paragraph 43(a): “On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, received a request for stolen documents from a candidate for the U.S. Congress. The Conspirators responded using the Guccifer 2.0 persona and sent the candidate stolen documents related to the candidate’s opponent.”</p>
<p>Soliciting stolen, hacked emails should be politically fatal to an aspiring—or possibly serving—member of Congress, particularly when the thief one petitions turns out to be an adversary foreign intelligence agency. It also raises questions about possible criminal liability for soliciting and receiving stolen information, at least to the extent that the government can prove that one knows the material is stolen. There is no indication that this American was involved with the Trump campaign. So to the extent that “collusion” is shorthand for collusion by individuals related to the Trump campaign, this incident many not meaningfully change the picture. The special counsel indictment announcement in February also named Americans unrelated to the Trump campaign as being dupes of the conspiracy, though those people were more clearly unwitting dupes.</p>
<p>Second, the indictment leaves open the possibility of conduct by Americans not described in this document. While the document does not allege any American who corresponded with these entities knew that they were part of the Russian conspiracy, it also does not say that they did <em>not</em> know or suspect these entities were part of a Russian operation. It leaves that question, about these actors and others, for another day. This document alleges that Americans—including at least one individual who was closely connected to the Trump campaign—had contact with the charged conspirators. Whether they did so with sufficient knowledge or criminal intent, and whether they took the necessary affirmative steps to create legal liability, is simply not addressed in this indictment. It clears no one, and it actually places publicly reported conduct in a more sinister light by clarifying that the individuals in question were, in fact, in contact with Russian conspirators, knowingly or otherwise.</p>
<p>Finally, the factual allegations in this document significantly improve the possibility of criminal conspiracy charges involving Americans. Until this action, there was little indication in the public record that the hacking operation persisted beyond the date the documents were released. While there were questions about whether the Trump campaign participated in some way in coordinating the release of these documents, the presumption based on public evidence was that the hacking scheme—that is, the violation of the Computer Fraud and Abuse Act, which constituted the most obvious criminal offense—was complete. This left a bit of a puzzle for “collusion” purposes. If the crime was completed at the time the hacking and theft were done, what crime could constitute conspiracy? One year ago to the day, Helen Murillo and Susan Hennessey <u><a href="https://www.lawfareblog.com/it-crime-russian-election-meddling-and-accomplice-liability-under-computer-fraud-and-abuse-act">analyzed</a></u> the possibility of conspiracy to violate the CFAA. At the time, they noted a stumbling block to the analysis even if individuals in the Trump campaign encouraged the release of documents or coordinated timing:</p>
<blockquote><p>While the precedent isn’t entirely clear on the matter, it is possible prosecutors here would need to prove not just that a member of the Trump team was aware of the CFAA scheme when he or she took steps to support the tortious act or violation of another state or federal law, but also that the Russians had the intention of publishing the emails at the time they obtained the information in the first instance. It isn’t at all clear from the public record that the Russians initially obtained the emails for the purpose of publishing them. Indeed, there is some suspicion the original intrusion was just in furtherance or ordinary espionage and the plan to release the emails came later.</p>
</blockquote>
<p>The Internet Research Agency indictment, in February, offered a <u><a href="https://www.lawfareblog.com/about-russia-indictment-robert-muellers-legal-theory-and-where-it-takes-him-next">potential legal solution to that puzzle</a></u>.</p>
<p>This indictment, by contrast, offers a potential factual breakthrough. It tells us that the prior factual premise was wrong: the alleged conduct violating the CFAA continued to occur throughout the summer of 2016. That affects the earlier analysis in two ways. First, it makes clear that the Russians <em>did </em>intend to release the information at the time the hacking occured. Second, and perhaps more important, the indictment alleges that the criminal hacking conspiracy was ongoing at the time individuals in the Trump campaign were in contact with charged and uncharged Russian conspirators, raising the possibility of more straightforward aiding and abetting liability.</p>
<p>In other words, stay tuned. This indictment represents a tightening of the ring in the story of criminal prosecution for the 2016 election hacking. The government has now alleged that the social media manipulations by Russian actors constituted a criminal conspiracy. It has alleged as well that the hacking of Democratic Party and Clinton campaign emails were crimes conducted by officers of the Russian state. The question remains: Who, if anyone, helped?</p>
Fri, 13 Jul 2018 22:01:11 -0400Autumn Brewington, Mikhaila R. Fogel, Susan Hennessey, Matthew Kahn, Katherine Kelley, Shannon Togawa Mercer, Matt Tait, Benjamin Wittes15507Brett Kavanaugh and the Mueller Investigation: What Do His Writings Really Say?https://www.lawfareblog.com/brett-kavanaugh-and-mueller-investigation-what-do-his-writings-really-say
<p>I think I am on safe ground in saying that when Brett Kavanaugh and I presented our papers at the Minnesota Law Review symposium in October 2008—<a href="http://www.minnesotalawreview.org/issue/93-5/page/2/">his on separation of powers and mine on (of all things) judicial nominations</a>—neither of us imagined that 10 years later, four pages of his text would be cited as proof that he is unfit for confirmation to the Supreme Court. Yet in the context of the Mueller investigation and the Trump presidency, a segment of Kavanaugh’s speech—the whole of which he later <a href="http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Kavanaugh_MLR.pdf">published as an article</a>—has become an exhibit in the early case for the grave danger that he poses to our republic.</p>
<p>The <a href="https://www.washingtonpost.com/politics/top-supreme-court-prospect-has-argued-presidents-should-not-be-distracted-by-investigations-and-lawsuits/2018/06/29/2dd9c1cc-7baa-11e8-80be-6d32e182a3bc_story.html?noredirect=on&amp;utm_term=.42103bec29e1">Washington Post reports</a> that:</p>
<blockquote><p>U.S. Circuit Judge Brett M. Kavanaugh, a former clerk for Supreme Court Justice Anthony M. Kennedy who was nominated replace him, has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.</p>
<p>Kavanaugh had direct personal experience that informed his 2009 article for the Minnesota Law Review: He helped investigate President Bill Clinton as part of independent counsel Kenneth W. Starr’s team and then served for five years as a close aide to President George W. Bush.</p>
<p>Having observed the weighty issues that can consume a president, Kavanaugh <a href="http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Kavanaugh_MLR.pdf">wrote</a>, the nation’s chief executive should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”</p>
<p>If a president were truly malevolent, Kavanaugh wrote, he could always be impeached.</p>
<p>Kavanaugh’s position that presidents should be free of such legal inquiries until after they leave office puts him on the record regarding a topic of intense interest to Trump — and could be a central focus of his confirmation hearing to succeed Kennedy, legal experts said.</p>
</blockquote>
<p>The <a href="https://www.thenation.com/article/brett-kavanaugh-argued-sitting-president-law/">Nation goes further</a>, declaring in an article entitled “Brett Kavanaugh Once Argued That a Sitting President Is Above the Law”:</p>
<blockquote><p>believers in the rule of law should be concerned that something [other than conservatism] about this nominee appealed to Donald Trump. Kavanaugh has been an open advocate for precisely the sort of imperial presidency that the founders of the American experiment feared—and that Donald Trump relishes.</p>
</blockquote>
<p>Other news and commentary outlets have piled on—and so have Democrats. Senate Minority Leader Chuck Schumer on Tuesday <a href="https://www.c-span.org/video/?448153-101/senate-democrats-probe-judge-kavanaughs-record-health-care">went so far as to say</a> that of the candidates considered for the nomination, President Trump, “chose the candidate who he thought would best protect him from the Mueller investigation.” Added Schumer, “Mr. Kavanaugh was probably the most extreme on that issue of the 25” judges the president reportedly considered. “Not only did Mr. Kavanaugh say the president should not be subpoenaed, he said a president shouldn’t be investigated.” At the same press conference, Sen. Cory Booker also commented on the matter.</p>
<p class="rtecenter">
<iframe allowfullscreen="allowfullscreen" frameborder="0" height="330" src="https://www.c-span.org/video/standalone/?448153-101/senate-democrats-probe-judge-kavanaughs-record-health-care" width="512"></iframe></p>
<p>And Sen. Richard Durbin added a tweet.</p>
<p></p><center>
<blockquote class="twitter-tweet" data-conversation="none" data-lang="en"><p dir="ltr" lang="en" xml:lang="en">And in light of the ongoing Russia investigation, is it a coincidence that President Trump picked a nominee who has expressed staunch opposition to criminal investigations of sitting Presidents?</p>
<p>— Senator Dick Durbin (@SenatorDurbin) <a href="https://twitter.com/SenatorDurbin/status/1016681265146351616?ref_src=twsrc%5Etfw">July 10, 2018</a></p></blockquote>
<p></p></center>
<p></p><center>
<script async="" src="https://platform.twitter.com/widgets.js" charset="utf-8"></script><p></p></center>
<p>If Kavanaugh’s writings on special counsel investigations really influenced Trump’s decision to nominate him, then Trump is a bigger fool than I have imagined. Kavanaugh’s writings on the subject don’t clarify all of his views on the subject of the Mueller investigation. But they clarify certain big things, and those things are really not good for Donald Trump. Noah Feldman <a href="https://www.bloomberg.com/view/articles/2018-07-10/supreme-court-brett-kavanaugh-doesn-t-give-president-trump-cover">writes that</a> “Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion” than the one to which many knees are jerking. Feldman is exactly right. In some respects, he actually understates the case. </p>
<p>Kavanaugh’s writings on the subject of special counsel investigations did not begin with the 2009 Minnesota Law Review article. In 1998, he published <a href="http://online.wsj.com/public/resources/documents/2018_0628_kavanaugh_1998_president_independent_counsel.pdf">in the Georgetown Law Journal an article he had written</a> after leaving his job with Kenneth Starr’s investigation but before returning to the office to help write what became the Starr Report.</p>
<p>I remember this article vividly, because it was an unusual one for its time. This was a period in which a consensus had developed that the old independent counsel statute had to go. Conservatives had always hated it. Liberals had come to hate it. And, in fact, Congress would allow it to lapse in 2000 after everyone from Starr himself to the Justice Department urged its end.</p>
<p>Kavanaugh, by contrast, made the then-unpopular case that some independent counsel law remained necessary: “future debates,” he wrote, “should not focus on <em>whether</em> a special counsel statute is necessary, but rather on the more pertinent questions of <em>by whom</em> and <em>under what conditions</em> a special counsel should be appointed.” He went on to sketch out what a healthier independent counsel law might look like—healthier as a matter of constitutional law, as a matter of policy and as a matter of democratic governance. While Congress did not take him up on writing this particular law, his specific proposal bears attention today by those who are interested in how Kavanaugh might respond to the Office of Special Counsel in the age of Trump. Three things in particular stand out.</p>
<p>The first is that the structure he describes looks a great deal like the regulatory structure under which Robert Mueller serves. Yes, there are differences. Kavanaugh proposed (cleverly, in my view) that an independent counsel be appointed by the president with the advice and consent of the Senate; Mueller, by contrast, was appointed by the acting attorney general. But the key point is that Mueller was not, as happened under the old independent counsel law, appointed by a panel of judges. In other respects, Mueller’s appointment closely tracks Kavanaugh’s proposal. Kavanaugh would have given the president discretion as to when to appoint a special counsel; Mueller was appointed at the discretion of Trump’s administration. Kavanaugh’s proposal would have allowed the president to remove the special counsel, with or without cause; the regulation under which Mueller serves permits his removal for cause only, but the regulation itself can be rescinded at any time. And Kavanaugh’s proposal would allow the attorney general to determine the special counsel’s jurisdiction, precisely what the acting attorney general did in Mueller’s case. In other words, Mueller looks a great deal like the type of special prosecutor Kavanaugh wrote an entire law review article to propose.</p>
<p>This does not bode well for, say, an embrace of <a href="https://www.lawfareblog.com/terrible-arguments-against-constitutionality-mueller-investigation">Steven Calabresi’s recent argument</a> against the constitutionality of the Mueller probe should the president’s lawyers bring such a claim before a Justice Kavanaugh.</p>
<p>Second, the article also makes a strong prudential case <em>for</em> independent investigations of the President and other high officials, given the inherent conflicts facing the attorney general in situations in which senior administration officials are investigative subjects. Kavanaugh made this argument at a time when, as noted above, the whole political culture was moving the other way. “Even the most severe critics of the current independent counsel statute concede that a prosecutor appointed from outside the Justice Department is necessary in some cases,” Kavanaugh writes. “Outside federal prosecutors are here to stay.” Critically, Kavanaugh’s proposed structural reforms to the independent counsel law were aimed not at weakening it but at <em>shoring up the credibility and independence of the investigators against political attacks</em>. Does this sound like someone who’s gunning for Mueller?</p>
<p>Third, and perhaps most interestingly, Kavanaugh proposed in this article that Congress codify what he described as “current law of executive privilege available in criminal litigation to the effect that the president may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States.” Pause over that for a second. In 1998, Brett Kavanaugh stated his view (correct under Eighth Circuit precedent obtained by the Starr investigation) that current law <em>already precluded the president of the United States from citing executive privilege in a criminal investigation. </em>And he proposed that Congress codify this rule into a new independent counsel statute.</p>
<p>Note the strength of some of his language on this point: If the law permitted government officials to assert common privileges against the federal grand jury,</p>
<blockquote><p>a government official (including the President or White House Counsel) safely could tell a White House or other agency attorney (or other official) that he destroyed subpoenaed documents, paid off potential witnesses, erased a subpoenaed tape, or concealed subpoenaed materials—or worse. The courts have rightly rejected the executive’s attempt to conceal such information, and Congress should codify those results to prevent future Presidents from trying the same gambit.</p>
</blockquote>
<p>In other words, by the time Kavanaugh gave his speech in Minnesota, he had already written a developed statutory proposal that described a structure very much like that of the Mueller investigation; he had defended the very idea of such investigations; and he had described the president as having no executive privilege to assert before them.</p>
<p>Now let’s turn to the dreaded four pages of Kavanaugh’s 2009 Minnesota article. These pages nowhere suggest that he has rethought his view of the law. They nowhere suggest that he has come to believe in some constitutional defect in the structure he proposed in 1998, under a close cousin of which Mueller currently serves. They nowhere suggest that he has come to believe that the law of privilege is more favorable to the president than he outlined in his Georgetown article.</p>
<p>What the article says is that after having watched President George W. Bush up close for a number of years, serving as staff secretary and as a lawyer, Kavanaugh now believed he had previously underestimated the demands of the presidency and the dangers of distracting the president with civil and criminal matters. And he suggests <em>as a policy matter</em> that “Congress [should] enact a statute providing that any personal civil suits against presidents ... be deferred while the President is in office” and that “Congress should consider doing the same ... with respect to criminal investigations and prosecutions of the President.” He writes that “Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.” And he adds in a footnote that, “For fairness’s sake, this proposal may also require extension of the relevant statutes of limitation.”</p>
<p>Kavanaugh and I talked at some length about these ideas at the time he gave that speech and wrote that article. I had written <a href="https://www.amazon.com/Starr-Reassessment-Benjamin-Wittes/dp/0300092520">a book about the Starr investigation</a>, a number of years earlier, in which Kavanaugh is quoted. So we had a shared interest in the subject of how investigations of the president should and should not take place. His point was in no sense to create an imperial presidency that was above the law. His concern, rather, was that his experience with Bush had taught him that Starr’s disabling of the Clinton administration was not worth it. This was about humility. “Looking back to the late 1990s,” he writes, “the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal-investigation offshoots.” He gave the speech when it looked like Barack Obama would win the presidency. He published the article with Obama in office. This was a policy proposal, in other words, to protect the institution of the presidency at time when his party didn’t control it. And nowhere in those pages does he indicate that his view of the law had changed.</p>
<p>There are a lot of questions about the Mueller investigation that could come before the court that neither Kavanaugh’s 1998 article nor his 2009 article addresses. Most immediately, can the president be compelled to testify before a grand jury? There are no tea leaves to read here on that or on whether the president can pardon himself. And in both articles, Kavanaugh leaves open the question of whether the president is amenable to indictment while in office (while saying that Congress should preclude such an indictment statutorily).</p>
<p>I suppose it is possible to worry that Kavanaugh’s stated policy preferences with respect to congressional action tease his likely judicial holdings on those subjects.</p>
<p>To me, however, the far more salient fact is that Kavanaugh has articulated a vision of a legitimate and appropriate investigation under our constitutional scheme and that it looks so much like the Mueller structure—and that he believes that the president of the United States has no common-law privileges before such an investigation. That is bad news for President Trump if Kavanaugh gets confirmed and finds himself ruling on any number of Mueller-generated questions.</p>
<p> </p>
Tue, 10 Jul 2018 18:03:38 -0400Benjamin Wittes15488